Dear Auntie

I am the HR Manager of a firm of London Estate Agents.  I’m grappling with a slightly sensitive personnel issue at the moment.  One of the (married) agents in our Central London branch sent a Valentine’s card to the Branch Manager, which is widely rumoured to have prompted a whirlwind romance.  While I don’t want to be a killjoy, I am suspicious of the agent’s motives, not least because the Branch Manager has control over his mistress’ targets and commission structure.  He’s also privy to a lot of confidential information and I am worried about possible indiscretions. 

I would like to transfer the agent to another branch, which I am permitted to do under the contract of employment – is there any reason why I shouldn’t simply give her notice to move forthwith?

Yours

Roger Staff

 

Dear Roger

Well, sex and the workplace has never been a more topical issue. If you saw last week’s episode of The Apprentice, as well as the subsequent media furore, you’ll know that views on the issue are starkly divided.  Those in Alan Sugar’s camp consider that exploiting one’s natural assets is strictly no go. But others think that love makes the business world go round and a bit of flirtation is just one way to get a leg-up when you’re climbing the greasy pole.

Whatever your view of the rights and wrongs of the issue, you need to take care before intervening in an office romance or, for that matter, banning them in advance. No romance policies, known as “love contracts” are fairly common in the United States: they usually prohibit relationships between colleagues, oblige transgressors to inform the employer and usually spell out what will happen if the relationship poses a threat to the business.  However, UK employers must take care when applying such policies as there are potential risks in terms of discrimination and breaches of human rights including the rights to privacy and to family life.  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.  However, all courts and tribunals are obliged to take the provisions of the Human Rights Act into account when considering cases, so if an employer were to bring a claim for unfair dismissal, discrimination or breach of contract following the implementation of such a policy, he/she could argue a breach of human rights "piggy backed" on his/her other claims.

Having said that, a distinction can be drawn between objecting to the romance itself and objecting to consequential business risks, such as those you identify. The concerns that you express at this romance are wholly legitimate.  In fact, let me add a couple more for you!  In practice, one of the big risks in this situation is that if and when the relationship goes sour the working environment may become intolerable or, at least, seriously disrupted.  In a worst case scenario, after love has faded one or other of the employees may cry “harassment” or could allege that they were being persecuted as a result of the break-up.  Employees standing on the side-lines are less of a problem but issues still arise.  These sorts of situation invite allegations of favouritism (whether real or perceived).   The risk of confidential information leaking also is a very real one and information gained in this way may be used against you if this romance lasts little longer than the Valentine’s Day bouquet. 

For these reasons and the ones you identify, I think you are right to intervene in this situation.   However, it’s dangerous to have an automatic response of moving the more junior employee.  Statistically, I’m sad to say, women are still much more likely to be in the junior position, so such a policy may amount to indirect sex discrimination.  In order to ensure that any such indirect discrimination can be justified (and therefore is lawful) you need to show that this response is a proportionate way to achieve a legitimate aim.  In practice, this means making sure that you have your “ducks in a row” before taking any step. A few tips are:

  •  Think carefully about, and document, the reasons that you rely on for needing to take action.  Beware in particular of justification that smacks of moral outrage or prurient interest rather than legitimate business issues. Your use of language (“mistress”) and comments about the agent being married and her motives concern me a little in this regard and I recommend you steer well clear of this line of attack in your discussions with those involved.
  •  Consider (and be seen to have considered) the other options available to you, including redeployment of the more senior employee. 
  •  Think about giving the employees the option to choose themselves which one of them gets moved (provided that it would not be too disastrous if the Branch Manager elected to be the one to go). 
  •  Most important of all, before making any final decisions, you need to meet with the affected employee, explain the nature of your concerns and give them an opportunity to make representations.  While this issue does not fit the normal profile of a disciplinary matter, it is likely to fall within the statutory disciplinary procedures, so you need to ensure that you comply with the three step process.  This will be particularly important true if the transfer could impact on remuneration or could be perceived as a drop in status for the employee.

Finally, may I recommend that you try to retain your sense of humour about all this. In the end, it’s not your job to play moral arbiter for your employees. By all means, take the steps you need to but remember that a judgemental response to the blossoming romance is likely to alienate all concerned and will achieve little except breeding resentment. Good luck!

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