‘L’ is for… Love Contracts

What is a Love Contract?

In the United States, “love contracts” are used to protect employers should love arise between two of their workers.  They take the form of agreements between the amorous couple and the employer which confirm that the relationship is consensual, thereby giving the employer certain protection from a subsequent claim of sexual harassment.  In the United Kingdom, sexual harassment is not a strict liability claim, and it is therefore easier for employers to avoid vicarious liability should the relationship turn sour.  It can do this by showing that it has taken reasonable steps to prevent the harassment from occurring, usually by having in place a policy prohibiting the same, and enforcing such policy through training.

As such, formal “love contracts” are relatively rare in the United Kingdom, however the use of “relationships at work” policies are on the increase – which are often referred to colloquially as love contracts.  Such policies, which usually appear in employee handbooks, often require employees who start an intimate relationship with one to disclose the same to their employer and put in place a procedure which should be followed by both employer and an employee should romance blossom. 

How do they protect an employer?

It is not the relationships themselves that employers are usually worried about, but the consequences of them.  For example, if a senior member of staff has a relationship with his/her direct report or someone for whom he/she is responsible, there is an obvious potential conflict. An employer may fear the improper dissemination of confidential information and “pillow talk”, or be worried about allegations of real of perceived favouritism.  Their business may also be adversely affected if the relationship fails. 

What is the usual procedure?

Love contract procedures usually oblige employees to inform their employers of an intimate relationship and set out what steps the employer may take if the relationship poses a threat to the business.  This might be transferring the employee to a different part of the business, offering alternative employment or otherwise altering the working arrangements of one of the love birds.  The procedure may even state that if this is not practicable then a dismissal with appropriate notice could follow, depending on the risks associated with the relationship.  The procedure 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.

What are the risks of enforcing a love contract?

Employees who are affected by the love contract may have claims for discrimination or breaches of their human rights.  For example, if a policy provides that if a relation 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. 

The use of the policy may also be in breach of the right to family and private life under Article 8 of the European Convention on Human Right (and the Human Rights Act 1998).  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.  However all courts and tribunals are obliged to take the provisions of the Human Rights Act into account when considering cases.  Therefore, if an employee were to bring a claim for unfair dismissal, discrimination or breach of contract following the implementation of a love contract policy, he/she could argue that the human rights angle be taken into account when determining their substantive claim.