Valentine’s Day has been and gone, and whilst many employees’ desks will be crammed with tokens of esteem and affection, the direction of Cupid’s bow and arrow may have caused some employers to fret. Recent surveys have shown a growth in the number of workplace relationships which, in turn, can expose employers to real or perceived risks. Decreased productivity and performance, appearances of impropriety and claims of sexual harassment are just a few of the potential problems employers may face due to office romances. Employers are now being faced with having to decide whether to take preventative steps by delving into the private lives of their employees with formalised policies prohibiting such behaviour, or to live and let be and address problems as and when they arise. The question on all employers minds at this time of year is how best to tackle love in the office?

Over recent years, there has been a large rise in employers using “relationships at work” policies in an attempt to restrict and/or regulate the consequences or intimate or close relationships between employees. Such policies are often referred to as “love contracts”, although they tend to be much less restrictive/intrusive than their US counterparts. In the UK, love contracts are formal written policies which may prohibit employees from having an intimate relationship with one another, or alternatively, set out a procedure which should be followed by both the employer and employee should a romance develop.

Under these policies smitten employees are usually obliged to inform their employers of their relationship and the employer clarifies what will happen if the relationship poses a threat to the business. Usual recourse for employers in these scenarios involves changing reporting lines, relocating one of the employees, or can even result in dismissal. However, employers rarely rely upon such policies unless the relationship poses a serious threat to the business. For instance, if a senior member of staff is having a relationship with a direct report, there is an obvious potential conflict particularly if the manager is responsible for appraisals and/or salary reviews. An employer has a justifiable concern that improper dissemination of confidential information may occur (people tend to be less discrete during pillow talk!) or be worried by allegations of favouritism, real or perceived. In addition, if and when the relationships go sour, this may lead to allegations of sexual harassment and discrimination and the reputation of the business and the morale of the remaining workforce could be harmed.

Although the introduction of relationships at work policies to the workplace is understandable from the employer’s point of view, care must be taken when enforcing these policies such as the potential risks in terms of discrimination and breaches of human rights. Such policies often provide that if a relationship does develop the junior employee will be relocated (or even dismissed). However, as the junior employee is statistically more likely to be a woman, the employer’s actions may well amount to indirect sex discrimination.

There are also human rights implications. Namely, a potential breach of the right to family and private life under Article 8 of the European Convention on Human Rights (and the Human Rights Act 1998). However, unless an employee works for a public body he/she would not be able to bring a claim for breach of human rights directly against his/her employer. The courts are however obliged to take the provisions of the Human Rights Act into account when considering other claims. It is therefore possible for a employee who is bringing a claim for unfair dismissal, discrimination or breach of contract following the implementation of a relationship at work policy to argue a breach of human rights on top of his/her other claims.

Ultimately an employer needs to weigh up two competing concerns. On the one hand the employer wants to protect his business by maintaining productivity and safeguarding confidential information and by being seen as transparent by dealing with allegations of favouritism. On the other hand an employer does not want to expose itself to the risks of potentially costly and embarrassing claims by implementing such policies.

Having weighed up these competing concerns and their pros and cons, if you decide that there is a legitimate and justifiable business need for the policy, its scope is of extreme importance. Such policies should place emphasis on the effect of the relationship in the workplace and not on the specifics of what can and cannot be done. Aside from the legal implications it is important that employers avoid unnecessarily invading the private lives of their employees since this could affect staff morale. Employers also need to be careful to ensure that an environment of secrecy and whistle blowing is not created by implementing an overly restrictive policy. Some employers have chosen to implement these policies simply to ensure that all employees are aware of how they view intimate relationships at work but with no intention to rely upon them.

Whether you decide to introduce a formalised policy on workplace relationships, use an ad hoc informal consultation process with love-struck employees or simply do nothing, the potential fallout from relationships in the workplace can be a real cause for concern.

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