A recent survey suggests that more employees than ever engage in workplace romances, with one in four of those relationships resulting in marriage. However, despite the reported successes, many more office flings end badly and this is becoming an increasing area of concern as human resources are often left to pick up the pieces.

What are the main areas to watch?

1. Sexual harassment

For the purposes of the Equality Act, anything done by an employee in the course of his employment is treated as also having been done by the employer regardless of whether the employer knew or approved of the actions. This is an extremely serious issue for employers. A soured sexual relationship or a unilateral infatuation could result in an employer facing liabilities for sexual harassment, discrimination, constructive dismissal or even personal injury claims.  The employer has a defence if it can show it took all reasonable steps to prevent the unwanted behaviour.  What are reasonable steps will vary according to the circumstances, but include showing that staff were up to date on equal opportunities training, having policies making clear that such conduct will not be tolerated, giving warnings and dismissing staff. 

2. Dating the boss

Staff should be reminded about the potential for criticisms that unfair favouritism is being shown or conflict of interests have arisen when managers date their subordinates. While one may argue that their private affairs will not influence their management decisions at work, often it may be difficult to divorce the two and allows others to question whether every decision has been influenced by private factors. To avoid this, managers should be encouraged to report any personal relationships so adjustments can be made to avoid these problems from arising. Could management responsibility for that individual be removed? Could one partner be relocated to a different office, desk space or floor etc. to avoid distractions?

3. Remaining professional

Staff should be reminded that they are expected to remain professional at all times and that personal issues must not be brought into work. A breach of this instruction could be addressed as a matter of misconduct under your disciplinary policy. You may wish to check your policies - are they likely to already address violence, aggression or insubordination, for example. Do they need updating to include sexual conduct? Does it include reference to same sex couples?

4. Poor performance

Office romances can be distracting and may affect performance at work. Performance should be monitored and managed as necessary to avoid any negative impact on your business. Staff should be reminded that ongoing poor performance may result in dismissal. Remember also that unhappy employees may be more likely to suffer ill health and incur absence from work on sick leave.

5. Can we not just ban it?

Some employers adopt a zero tolerance approach to office romance, but this is rare. Mostly those approaches apply to professions where personal health and safety could be jeopardised. In 2007, the Employment Appeal Tribunal held in Faulkner -v- The Chief Constable of Hampshire Police that a policy applied by the police in preventing romantic couples working alongside each other may have been indirectly discriminatory against women (in that women are more likely to be adversely affected by a policy which prevented couples from working together in a management/subordinate role), but that discrimination was justified in ensuring proper and correct working relationships. Similar practices are adopted by the armed forces. If you are considering just banning this from the workplace, remember your employees have rights under the Human Rights Act, specifically Article 8 right to respect for private and family life, and you should be prepared to show you have considered and balanced all needs and interests.

As this is such a hot topic, we have chosen sexual harassment in the workplace to be the subject of our mock employment tribunals that we shall be running at various venues throughout the year. We look forward to seeing you there.