Q.
I have just found out that two of my staff have been seeing each other. I am concerned that their relationship is affecting their work particularly because one is the line manager of the other and also a senior director in the business. I have also been told by some of the other staff that the director has been treating the employee he is seeing more favourably than other staff at the same level and this is affecting moral in the department. What can I do?
A.
Your concerns may be justified, as intra-office relationships can pose real problems for some employers. Over 200 businesses responded to the ‘Impact of Office Romances on UK Businesses’ survey (Illicit Encounters.com). The overwhelming majority of staff – 84 per cent – agreed that an office romance would have a negative impact on productivity. Meanwhile, three-quarters of business that responded said they had no formal or informal policy around staff engaging in office relationships – even though most agreed that such relationships were disruptive to productivity.
You are right to consider the potential legal risk of such relationships, particularly across power divides, as these can lead to accusations of favouritism and unprofessional behaviour. Messy breakups can also result in claims of sexual harassment or bullying.
You need to be careful in drawing the line between work and play. Any Big Brother type bans on intra-office relationships could lead to dishonesty from employees and force out your talented, but disgruntled employees. An over-zealous employer which sacks an employee for having an affair at work might find itself struggling to defend a claim for unfair dismissal or sex discrimination (or both). Tribunals are unlikely to be sympathetic to an employer who seems to be meddling unnecessarily the private lives of their employees.
So what are your options? First and foremost, trust your staff to act like professionals and look on the bright side – there is evidence to suggest that employees in relationships actually perform better at work. That said, with the situation you have outlined you need to be sure that the director (as the employee’s line manager and a senior director) treats the employee in exactly the same way as every other person he manages in order to avoid complaints of unfair treatment by other employees who he manages.
You could consider introducing a relationship policy which sets out appropriate office behaviour, and which could encourage employees to keep their private life private and not bring romantic issues into the office. Ensure your harassment and bullying policies and disciplinary policies deal specifically with inappropriate sexual behaviour (both in and outside of the office), together with any behaviour which may bring your company into disrepute. Introduce clauses into these policies which make it clear that the rules also apply to intra-office affairs. If you have the contractual power, you might also consider transferring one of the employees to a different department if your business can accommodate it. An enlightened approach would be to transfer the director, as the more senior male employee.
Furthermore, you need to be aware of what might happen should the couple break up badly. The hurt and emotion involved could result in unprofessional behaviour, moodiness and tension that could adversely affect their work and impact on other employees and the office environment generally. The director as a senior-level employee should set an example for staff in order to ensure that others follow. He must act in accordance with his fiduciary duties and should not do anything which brings the business into disrepute or undermines the relationship of trust and confidence with his employer as this could result in his dismissal.
Attempts to move one of the pair after they split up, i.e. to another team or department, might give either party cause to bring a claim against the company if they can prove that the only reason that were transferred (and possibly treated less favourably) was on the ground of their sex or that there was no contractual power to move them, so seek advice before taking such action.
It is well known some US employers companies deal with these issues using ‘love contracts’. The idea is that the employee couple signs an agreement to say that their relationship is consensual and agree to clauses which set out appropriate conduct expected from them. In theory, the employer is then protected against becoming vicariously liable for any sexual harassment claims brought by the couple involving each other. Although the concept of love contracts is catching on in the UK, it is unlikely that such contracts will be enforceable here as current law prevents employees from signing away their legal rights to bring claims (contrast with a settlement agreement where the employee receives compensation for waiving claims.)
Moving forward, it is advisable to take a consistent, non-heavy-handed approach when dealing with intra-office relationships. If you have a relationship policy in place or plan to introduce one, this should be administered fairly and consistently. If you have genuine concern about, or where a problem comes to light with an intra-office relationship, you should always try to speak to the couple concerned informally in the first instance, and to proceed with caution where you feel that further, more formal action is necessary.
If you need advice or have any questions in relation to the above, please contact David Greenhalgh on 020 3603 2177.
This article/blog is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.
