With Valentines Day just around the corner many are planning that special something for their loved ones. But should an employer be worried if their employees are preparing to spend those special moments with a colleague? The increasing tendency to spend long hours in the office and to meet partners later in life, means that office romances are on the cards for many. According to various surveys more than 50% of UK employees have at some point dated somebody they work with.
Why should the Company care if two of its employees are in a relationship?
There could be a number of potential risks to the Company that it is important to be aware of:
- Sex discrimination (s13 Equality Act 2010) – this may be a risk if for example the Company finds out that two employees are having a relationship and for that reason asks the more junior female employee to move teams, or leave the Company, or if two employees stop having a relationship, and the more senior male employee subjects the more junior female partner to detriment as a result (e.g. not promoting her).
- Sexual harassment claims (s26 Equality Act 2010) – problems may arise when feelings are not reciprocated by the other person, or if after a break-up, one party is still attempting to win their former partner back. These claims can relate to the harassment itself, such as any unwanted verbal, non-verbal or physical conduct of a sexual nature or unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, or sending e-mails or other messages with material of a sexual nature. We have also seen issues where a subordinate employee rejects the advances of their superior and then is turned down for a promotion as a result.
- Victimistion (s27 Equality Act 2010) – If an employee, for example, reports an unwanted sexual advance to the Company, and is then subjected to a detriment, for example dismissal or not receiving a pay rise or bonus.
A dentist hit the headlines in the US recently when the Iowa State Supreme Court found that he was within his right to sack his dental nurse, who had worked for him for 10 years, because he found her to be an “irresistible attraction” (http://thetim.es/11gW14g). However, in the UK this would almost certainly have been found to be sex discrimination.
Various non-legal issues may also be of concern to an employer:
- Conflicts – relationships at work can give rise to conflicts of interest, one example would be when an employee and their line manager are in a relationship, conflicts which could arise in this situation include matters such as appraisal scoring, remuneration, work allocation, and promotion;
- Checks and balances – many financial institutions should be particularly concerned if co-workers are in relationships with one-another, as this can lead to problems in relation to internal checks and balances such as a back-office employee who verifies trades being in a relationship with a trader; and
- Confidential information – companies may be concerned that employees in a relationship with one another are sharing information which it may not be appropriate to do, such as management plans for the workforce, or in relation to businesses where employees have access to inside information.
How can the Company protect itself?
“Love contracts” are of limited use. They are a concept which have found favour in the US. They involve asking employees who are in a relationship to sign a document confirming that the relationship is voluntary and that they understand the company’s sexual harassment policies. This is unlikely to be particularly helpful in our view since once the relationship has been reported, it is likely that both parties are conducting it voluntarily, and the document will not protect the Company if that situation did change in the future. We consider that a better approach is to follow the tips below:-
- Update your discrimination and harassment policies and provide training to employees – make sure that you have properly informed employees about which behaviour is considered inappropriate.
- Consider imposing an obligation to report relationships to the Company – most financial institutions already require that employees disclose any relationship with a co-worker to the Company’s HR function so that the Company can consider potential conflicts and potentially transfer one of the parties, if necessary.
- Consider banning relationships with co-workers – if you think that there is a particularly high risk in your work-place, you might consider prohibiting relationships with co-workers completely. US employers have not found this method to be particularly effective and it may simply result in more concerted efforts by employees to cover up any relationships. If a relationship is not disclosed it removes the opportunity for the Company to manage any associated risks. There is also some risk that employees could claim that this sort of ban is contrary to their right to privacy and family life. A less extreme alternative might be to urge employees to exercise discretion in particular where there is a professional conflict of interest.
- Consider possible discrimination issues when a relationship is reported – it is important to deal sensitively with relationships when they are reported. Although the natural conclusion may seem to be for example to move the more junior employee, this may constitute sex discrimination, so it is important to be alive to the issues and to seek legal advice if you are in doubt.