The fashion retailer has introduced a ban on managers and subordinates having romantic relationships or even dating!
It is to be assumed that American Apparel did not want to repeat its experience with founder Dov Charney, notorious for the number of allegations of sexual harassment allegations and breaches of its anti-harassment policies he has faced, who finally exited in December 2014.
In the US strict policies on workplace relationships are common where sexual harassment is a strict liability claim offering big money compensation. Employers can avoid liability should a relationship turn sour resulting in allegations of harassment if there is no relationship in the first place.
Sexual harassment allegations are less lucrative for employees in the UK where employers can avoid liability by showing they have taken reasonable steps to prevent harassment from occurring, usually by having in place a policy prohibiting the same, and enforcing such policy through training.
It is not the relationships themselves that UK employers worry about, but the consequences of them.
If a senior member of staff has a relationship with a direct report there is an obvious potential conflict with the risk of the improper dissemination of confidential information, “pillow talk” or real or perceived favouritism. A business may be adversely affected if the relationship fails.
UK businesses do not generally ban dating or relationships but do have policies which require employees who start an intimate relationship to disclose it to their employer so that appropriate steps can be taken to avoid these concerns, for example, transferring one of the employees to a different part of the business or otherwise altering the working arrangements. If this is not practicable a dismissal with appropriate notice could follow, depending on the risks associated with the relationship. The policy would normally also make it clear that disciplinary action would be taken in the event that inappropriate behaviour takes place, not just liaisons in the broom cupboard but also breaches of confidentiality or evidence of favouritism.
Employees who are affected by the “relationships at work” policy may have claims for discrimination. For example, if a policy provides that if a relationship does develop then the junior member of staff will be moved (or even dismissed), statistically the junior employee may be more likely to be a woman and, if so, the employer’s actions may amount to indirect sex discrimination.
But the use of the policy may also be in breach of the right to family and private life under the Human Rights Act 1998. Whilst it is the case that unless an employee works for a public body, he or she would not be able to bring a claim for breach of human rights directly against his/her employer, all courts and tribunals are obliged to take the provisions of the Act into account when considering cases.
Given that statistics show a high number of relationships start at work, a carefully thought out policy is becoming an essential for employers.