In an article first published by Thomson Reuters Accelus, Managing Associate Annabel Mackay looks at the difficult issue of relationships at work. Most love poems tend to focus on unrequited love or the end of a relationship. The employment issues arising from workplace relationships are no different. Employers may have policies in place which seek to restrict or require disclosure of relationships in the workplace but can such policies ever protect an employer from all the liabilities that may arise when a relationship breaks down?
The most common complaint is usually harassment or another form of discrimination. The definition of harassment is broad and covers unwanted conduct related to a protected characteristic (such as gender) that has the purpose or effect of violating a person's dignity or creating an offensive, intimidating or hostile environment. When deciding whether the conduct has had such an effect, the perception of the complainant is taken into account, although the Tribunal will also examine whether that perception is reasonable. However, perhaps the most challenging issue for employers is that even a one-off, unwanted act may suffice.
As a starting point employers need clear rules about personal use of their internal communications systems. Harassment complaints may arise where an employee receives unwelcome overtures from a colleague via instant message or email. Reviewing a raft of instant messages and emails containing inappropriate workplace communications can be troubling for employers, particularly when those communications will be disclosed in legal proceedings. For that reason, many employers will have warnings that appear when their employees open email or instant messenger which contain a reminder about prohibited communications.
Unwelcome conduct may not be confined to written communications. It might involve remarks made or actions taken on the employer’s premises. In one harassment case, a manager subjected the claimant, with whom he had a prior relationship, to a tirade of criticism because he felt that she was jealous of his relationship with another colleague. The claimant’s harassment complaint succeeded because accusations were put to her based on the fact that she was a woman to whom the manager ascribed jealousy.
Activities which take place outside of work but which retain the workplace connection, such as a staff event, client entertainment or a business trip, can also form the basis of a harassment complaint. Many complaints arise following inappropriate behaviour at such functions, particularly those involving alcohol. The incidents in question may have taken place many years prior to a substantive complaint being raised but form an embarrassing backdrop to Tribunal complaints based on a discriminatory workplace environment.
Employers will be vicariously liable for acts of harassment occurring in the course of employment. In order to defend such claims they must demonstrate that they have taken all reasonable steps to ensure that the conduct in question does not occur. This will involve having a suite of policies dealing with use of the employer’s communication systems, the type of behaviour that may constitute harassment and how to raise a grievance or a complaint under the anti-harassment policy. Tribunals expect employees to be trained on those policies; having a policy will not be sufficient unless it is properly understood.
Even where there are proper policies and training in place, the nature of these issues means that some flexibility is required. Where it becomes apparent that an employee feels that harassment has taken place but does not wish to make a formal complaint, an employer should still investigate the matter on an anonymous and informal basis. This will require delicate handling as the subject of the complaint may feel aggrieved that the matter is being raised in the absence of a formal grievance. In that situation, where inappropriate behaviour has not been committed to writing and there are no employees prepared to go on record, the employer can only identify the concerns in general terms and ensure that the alleged harasser is aware of its policies on this subject. This approach may prompt a trust and confidence complaint from the individual accused of harassment. However, if the employer does nothing, they may be exposed to a more serious harassment/discrimination complaint from the recipient of the unwelcome behaviour.
There are also specific provisions of the Equality Act 2010 which outlaw less favourable treatment because an employee has submitted to or rejected harassment. These provisions will often be relevant where a relationship has come to an end. In one case, a workplace relationship broke down but one party refused to accept the situation and continued to make inappropriate advances, resulting in the complainant suffering extreme stress at work and taking periods of sick leave. The EHRC Code gives the example of an employee who is passed over for promotion after rejecting her manager’s advances.
The potential for a consensual workplace relationship to influence or be perceived to influence pay, performance assessments, benefits and working patterns means that many employers will have policies which require employees to disclose a workplace relationship. A disclosure under the policy may result in a change to the reporting line in order to guard against actual or potential conflicts of interest. Although these policies require a disclosure, the relationship often comes to light because other colleagues complain of favouritism.
The policies must be explicit about the likely action that may be taken and how a decision on such action will be reached (such as a transfer to a different team or the removal of line management responsibilities for a particular member of staff). This is important in order to avoid constructive dismissal complaints, or discrimination complaints, where there is a perception that one party is being treated less favourably. Even where the policy is clear, the matter will require consultation with those concerned to find a sensible solution. The policy must strike a balance between the employer’s legitimate business interests and the employee’s right to privacy. It is rare for such policies to result in termination of the employment contract.
In the event that dismissal is a potential outcome, the policy must be operated in an even-handed way. An employee succeeded with her discrimination complaint where rumours of a relationship at work resulted in the termination of her employment for breach of policy, while the other party, a football player in the club for which she worked, remained in post. Where an employee has two years’ service, the employer would also need to adopt a fair procedure before arriving at any decision to dismiss. This would involve discussing the difficulties presented by the relationship with those involved and trying to reach a solution.
In a slightly broader context, and in the absence of any specific policies on the subject, there are many examples of cases where employees have been dismissed after their relationship with a senior member of staff has come to an end. One employee was dismissed after her manager found out that she had started a relationship with another man. The claimant argued that the termination of her employment was discriminatory. On the facts, the reason was found to be jealousy and/or discovery of the relationship rather than gender. This pattern of an employee being dismissed when a relationship breaks down can be seen in many of the discrimination cases. In a number of cases the female claimant does not succeed because the male comparator would have been similarly treated (such as where an employee was dismissed after her manager discovered, once their affair had ended, that she had lied to him about a personal matter).
In a People Management Survey conducted in 2014, over half of those surveyed admitted to having a workplace relationship. This is unsurprising given the fact that employees are encouraged to socialise with colleagues and clients outside work and that employees are increasingly contactable when they have left the office, blurring the line between work and home. When those relationships deteriorate or one party is dismissed or suffers some other disadvantage as a result, employers can find themselves defending costly claims for uncapped damages.
In the absence of a ban on workplace relationships, which would be completely unrealistic, employment policies cannot eliminate the risk of claims. However, they can assist employers in their “reasonable steps” defence. Employers should continue to do what they can to cultivate an environment where everyone’s dignity at work is respected through policies and training on matters such as harassment, equal opportunities and use of electronic communications. The end of the affair should not mean the end of the employment relationship.