Meeting a romantic partner at work used to be common and rom-coms and novels have used this as a romantic plot for decades. There are serious pitfalls for both employers and employees when such relationships go sour and allegations of misconduct are made. Businessmen, oligarchs, sportsmen and now lawyers are all being shamed in the press for their intimate conduct with colleagues.
Of course, such allegations tend to surface when one of the party feels wronged and wants either revenge against office predators and/or to protect unwitting employees who may come after their departure. Most of these allegations will have not been proven by any court but still carry a heavy risk for the company’s image and reputation.
Usually the problems arise for the employer when there is a considerable disparity between the authority or position of the participants in the relationship, or if at least one party involved is a professional and subject to additional regulation or standards by an external body such as the FCA, MBA or SRA, for example, and the conduct that the employee is accused of would be a breach of those regulations or standards. If the accusations are particularly serious, then employees may be subject to criminal investigation, criminal charges and sometimes injunctions which prevent one employee from communicating with or physically being near the other.
What are employers’ duties?
Employers are responsible for the health, safety and welfare of employees whilst they are at work (both under common law and statute) and they are also vicariously liable for the acts of their employees which are carried out during the course of the employee’s employment. This has been held to be a wide liability and an employer will only not be vicariously liable for the employee’s actions of they go off on a “frolic of their own”. This means in reality that employers may be liable for issues which arise during work drinks and social events between colleagues.
Employers are not the fun police, but do need to set boundaries to protect employees and the employer itself. In addition, almost every employer should and will have an equality and diversity policy and an anti-harassment and bullying policy. These policies may be relevant when one party is complaining about unwanted acts which have occurred and which relate to a colleague.
So as an employer what can you do to manage the risk arising from such allegations? There are the different ways a company can manage, monitor office relationship, to avoid risks, and none of them is perfect. I will list four most common ones and try and explain pros and cons of each.
Have a “no intimate personal relationships at work” policy.
Such policies are often favoured by US professional services firms. They provide that any romantic relationships with colleagues are forbidden and that should an infraction occur, the party should report their relationship to the firm and then termination may result.
The problem with such a policy is that employees do get involved together and they may be fearful of reporting their own relationship in case disciplinary action or dismissal should result for both them and their co-participant. Consequently, there may be a culture of secrecy within such workplaces and no relationships are ever reported. Additionally, all the employees may be subject to contractual provisions which require them to report their own wrongdoing and the wrongdoing of colleagues. Such a provision may also put colleagues in a tricky position if they are contractually bound to report the wrongdoing of their colleagues: should they speak-up and report what they have witnessed or will they become complicit in the wrongdoing by not reporting a relationship? In my experience, the forbidden nature of such relationships can also add to their allure and frequency.
Furthermore, despite the employer’s policy stating that a personal relationship at work could amount to gross misconduct, an employer may only dismiss for a fair reason after a fair procedure. A fair dismissal is by reason of redundancy, performance, capability, conduct, illegality or for some other substantial reason. There have not been any reported cases where breaching such a “no relationships” policy is considered to be a fair reason for dismissal under either conduct or “some other substantial reason”. In such case, the employer would also presumably have to dismiss all the relationship participants and potentially anyone who did not report a relationship when they first became aware of it or they could face various employment related claims based on the unequal treatment of colleagues.
Another question for the employer to grapple with is what is an “intimate personal relationship” or the specific conduct the employer is trying to capture? Does it include a single drunken kiss at after work drinks which is never repeated or is it only intended to capture “dating” and if so, when does that start….?
Have a policy which prevents employees having intimate relationships with colleagues that they manage in any way, or who work together in any team capacity.
This is intended to minimise the effect that one person with power or authority may have over another and which may impact upon their working and personal relationship. Such a policy usually requires the employee to notify HR or the relevant line manager of any relationship which infringes the policy and then the employer will look to move one of the employees into a different role to prevent contact at work.
This appears to be a good compromise and could remove the drama and awkwardness of employees bringing their domestic woes into a work setting. It also allows for the employer to remove the risks of other employees feeling slighted when “power couples” favour their partner or if they dominate teams because of their relationship (either by using their partner as their protector or their aggressor).
In reality, in smaller workplaces a “no contact” policy can be difficult to manage when the couple have the same speciality or expertise. Also, which one does the employer move? Presumably the employer would commence a dialogue with both, but if they both wanted to remain in post and did not want to sacrifice their role for their partner, the employer may unwittingly be the cause of a breakup. This breakup in turn then does not require either employee to move and can leave warring parties working together. This would be contrary to the general intention of the policy to maintain peace and harmony at work to prevent risk.
Allow intimate personal relationships between employees providing that the employer has been notified of them.
For smaller workplaces where moving employees around to avoid partners is not so easily achieved, a requirement for the employee to notify their employer of an intimate relationship may be enough for the employer to avert any possible risks by more closely managing the situation. Not all intimate work relationships are toxic after all. This way all the parties can be “grown up” and can be left alone to get on with their work, providing the employer is more diligent and alert to potential issues.
However, who at the employer is going to keep this list of relationships? Presumably it would need to be amended as relationships change. Which employer or employee really wants to process or reveal all this sensitive personal data and where is it stored, who has access to it and who should it be revealed to? Whilst the list should contain current intimate relationships, it can often be the past intimate relationships which cause problems between employees. How long can an employee keep this information?
Carry out training on bullying, harassment and expected conduct at work, but do not make hard and fast rules about intimate relationships.
Banning intimate work relationships and notification of them to employers is fraught with difficulty. This doesn’t mean that the employer should ignore the risk. Many employers will decide that educating employees about what is acceptable conduct in the workplace and providing easy avenues to raise concerns and grievances is the best way to treat employees. Whilst such training is advisable in any case, it does not prevent some of the examples of risks in the workplace referred to above from happening. The training may also need to be tailored so that executives and managers understand that their positions carry responsibility to set good examples to all and not to abuse any position of power.
Such an approach also requires employers to be ready to hear complaints about conduct and grievances and to take decisive action to move employees. This will not necessarily be risk-free if an employee believes that they are being treated unfairly and they are prepared to bring a tribunal complaint. However, I would suggest that the cost and PR damage from employment claims occurring because an employer has taken proactive steps to minimise risks to its employees will be substantially less than a claim by an employee against their employer alleging that they have been sexually harassed in a work related context.
As can be seen from the options above, risks can be minimised, but not extinguished: employees are only human after all.