Legal minefield of office romances how can employers keep on the button?

Written by
Changeboard Team

15 Feb 2010

15 Feb 2010 • by Changeboard Team

Love affairs at work - the implications

Its hardly surprising that office romances are becoming more prevalent, in view of todays working culture. But the subject of office romances raises a number of difficulties for both employers and employees. Employers have expressed a concern not only in relation to the existence of relationships in the workplace, but also the consequences of them and particularly the potential risks to their business.

The upside of a flourishing relationship is that a business is likely to have some happy workers which should promote efficiency and productivity levels.

On the other hand, what happens if things turn sour? A deteriorating relationship or a relationship which has broken down and is not resolved amicably is a potential minefield for employers. Not only does it create an unpleasant working environment, but employers could face a number of tribunal claims as a result.

Sex discrimination where do employers stand?

In the eyes of the law, employers are often just as liable for harassment claims as the person doing the harassing. An employee may bring a harassment claim against both the employer and the perpetrator under discrimination legislation and the Protection from Harassment Act 1997 where, for example, persistent unwelcome advances continue even after the relationship has ended.

If an employee has been asked to transfer to another department as a solution to the problem of office romances or after a relationship has broken down, a sex discrimination claim can still be brought against the employer.

Equally, employers could face a constructive dismissal claim where they fail to address and handle the behaviour appropriately.

Finally, as the recent allegations against John Terry demonstrate, there may be a breach of trust and confidence, which could lead to the employer taking the view that the individual concerned is no longer suitable to carry out their role and could lead to their demotion.

Strict rules on romances - the way forward?

In the United States, some employers have adopted policies restricting office relationships through the use of a non-fraternisation policy or have asked employees to sign a consensual relationship agreement commonly referred to as a love contract.

The existence of a non-fraternisation policy and/or a love contract is arguably invasive of an employee's privacy rights and potentially breaches an individual's human rights. In addition, love contracts raise a number of concerns in their own right.

First and foremost, the legal status of such a contract has not been tested before a tribunal nor can it provide a waiver of an employee's statutory rights before those rights have arisen. It also raises a number of practical questions. Does the refusal to sign amount to a ground for disciplinary or dismissal? How will it be monitored and enforced? At what stage of a relationship is the contract required?

Ensure clear guidelines on employee relationships

Employers are therefore well-advised to rely on codes of conduct, equal opportunities and anti-harassment policies. However, employers should note that the existence of a policy is not on its own sufficient. Employers must ensure that all members of staff are trained and understand the type of behaviour which is, and is not, acceptable in the workplace.

Employers should handle the existence of a relationship on a case-by-case basis in order to minimise employment claims. However, employers should ensure that appropriate steps are taken in every case, including disciplinary action where appropriate, to demonstrate that the situation is taken seriously and that inappropriate behaviour in the workplace will not be tolerated.

Cross level romances - how to handle it

A particularly tricky area is relationships between senior and junior staff members. These should, if possible, be discouraged as they are often perceived as inappropriate and could be harmful to the company's interests.

A relationship between a junior employee and their superior could cause unrest. Other employees may claim that the individual involved in an office romance is being treated more favourably or that their chances of promotion have been increased as a result.

However, if a relationship does flourish between a junior and senior member of staff then employers should follow the procedures outlined in their policy documents to ensure equal opportunities for all staff members and avoid claims by other members of staff that the junior employee is receiving more favourable treatment.

Be open with employees & theyll be open with you

Employers must ensure that policies are in place setting out how to deal with office romances and that all staff receive appropriate training.

The existence of policies will be more conducive to a more open working environment as employees will know exactly what behaviour is, and is not, tolerated and will avoid employees having to keep everything hidden which will most likely improve both morale and productivity.