What is a love contract?
“Love contracts” are used to protect employers should a romantic relationship arise between two of their workers. They typically take the form of agreements between the amorous couple and the employer which confirm that the relationship is consensual, thereby giving the employer some protection from the risk of a subsequent claim of sexual harassment. Whilst formal “love contracts” may be relatively rare in the United Kingdom, the use of “relationships at work” policies is on the increase.
How do love contracts protect an employer?
It is not the relationships themselves that employers are usually worried about, but the consequences of them. The main concerns are allegations of sexual harassment, favouritism or conflicts of interest.
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 or perceived favouritism. Their business may also be adversely affected if the relationship fails.
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. Employers can do this by showing that they have taken reasonable steps to prevent the harassment from occurring, usually by having in place a policy prohibiting the same, providing training and enforcing the policy when it is breached.
What is the usual procedure?
Love contract procedures usually (1) oblige employees to inform their employers of an intimate relationship and (2) 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 adversely affected by a love contract may have claims for discrimination or breaches of their human rights. 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.
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.
We are increasingly advising employers on relationships at work discussing the consequences of situations when no such contracts are in place. If you would like to discuss the pros and cons of relationships at work policies, please get in touch.