Managing relationships in the workplace – The legal issues for employers
Valentines day is upon us once again and the air is alive with magic and love and everything else greeting card retailers say floats around us every 14th February. As appealing as that may be, this somewhat grumpy author is here to give you all a reality check about workplace relationships. With people in the UK spending the majority of their time at work, over half of us are predicted to engage in an office romance at some point in our career. Although there is nothing inherently wrong with consensual relationships between responsible and professional adults, there is a risk that a workplace relationship can be disruptive or lead to conflicting interests. Taking steps to manage these practical risks can be a positive strategic decision for employers but it is important to maintain a fair approach when doing so to avoid legal pitfalls.
There are no general legal rules which govern relationships at work. However, there are a number of offenses which employers could find themselves liable for and should be aware of. Perhaps the most serious is a claim for sexual harassment which can arise where affection is unrequited or a consensual workplace relationship breaks down. The legal test for this is ‘unwanted conduct of a sexual nature that has the purpose or effect of violating another employee’s dignity or of subjecting them to an intimidating, hostile, degrading, humiliating, or offensive environment’. This is a wide and subjective threshold and so conduct ranging from inappropriate emails and ‘jokes’ to physical contact can all give rise to a claim.
Employers may have a defence where they have taken all reasonable steps to prevent harassment from occurring. Some steps worth adopting include taking a zero-tolerance approach to harassment, providing appropriate training to managers, and considering appropriate recommendations from the EHRC and the UK’s Women and Equalities Committee.
Workplace relationships can also give rise to other discrimination claims, three of the most common are as follows:
Sex Discrimination: This is where someone is treated less favourably because of their sex and can arise, for example, if only one person in the couple is dismissed or transferred based on their sex.
Sexual Orientation Discrimination: It is important to treat all relationships equally. For example, a same-sex relationship may reduce the risk of sex discrimination, but there could be sexual orientation discrimination if the individuals are treated less favourably than a heterosexual couple.
Victimisation: No workplace is perfect, and employees may have complaints. Victimisation may arise where an employee is treated unfavourably as a result of a complaint, regardless of whether or not the complaint itself is substantiated.
So, what can employers do to protect themselves? The most obvious solution might be to simply ban workplace relationships. However, a ban of this nature may be unenforceable any may itself lead to legal claims. Dismissing an employee on the grounds of a ban of internal relationships may result in claims of unfair dismissal or constructive dismissal and could even go so far as to interfere with an employee’s human right to respect for private and family life. However, an employer also has a right to protect their business interests and so specific prohibitions may be appropriate where the risk of conflict or bias is significant.
A more proportionate approach may be a disclosure policy which requires employees to disclose their relationships, particularly where there is a significant risk of bias or conflict. This approach has become relatively commonplace and employers should take some time to identify problem areas where relationships between co-workers may impact upon decision-making or performance.
A well-communicated and consistently enforced workplace relationships policy is perhaps the best way to get some peace of mind. Within the policy employers can:
- Identify roles and situations which require disclosure, such as where there is a risk to confidentiality of business information, embarrassment of other staff, or reduction in team morale.
- Reserve the right to move employees or take other appropriate measures where conflicts of interest are likely to arise.
- Prohibit intimate behaviour. Although unprofessional behaviour is likely already addressed by normal disciplinary policies, performance and conduct processes can be reiterated here.
- Reiterate the grievance policy and add any provisions to address more sensitive matters.
- Set out proportionate penalties for breaches.
A well drafted policy can ensure employees appreciate the company’s perspective, and managers understand how to approach workplace relationships fairly and consistently. If you would like help preparing a workplace relationships policy, the employment team at Acuity would love to help.
Claire Knowles – Partner
Mark Alaszewski – Associate
Rebecca Mahon – Solicitor
Amelia Wheatstone – Solicitor
Adam McGlynn – Trainee Solicitor