Romance is dead this Valentine's... or is it?

February 10, 2015

Romance is dead at U.S. fashion retailer American Apparel.  The chain has introduced a ban on managers and subordinates having romantic relationships or even dating.  We assume, it did not want to repeat its experience with founder Dov Charney, notorious for the number of sexual harassment allegations he has faced and who it finally exited last June, in part for alleged breaches of its sexual-harassment policies. 

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 in the UK and 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.

The difference in workplace culture and values between offices in different countries can be a particular challenge for an international business.  UK HR often need to hold firm against demands to deal with a workplace relationship in a particular way from overseas head office management who do not appreciate or understand the legal implications of their suggested approach.

As a result, it is not the relationships themselves that UK employers are generally concerned 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: there is 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 particularly if it is between senior people and there is a bitter parting of the ways.  Managing a relationship breakdown can consume much of HR’s precious time.

UK businesses do not in the main 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 the potential conflicts.  This may include, for example, transferring one of the employees to a different part of the business or otherwise altering the working arrangements of one or both.  If this is not practicable a dismissal with appropriate notice could follow, depending on an assessment of 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, some policies provide that if a relationship does develop then the junior member of staff will be the one moved (or even dismissed). Statistically the junior employee may be more likely to be younger or female and, if so, the employer’s actions may amount to indirect age or 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 Rights (and the Human Rights Act 1998).  Unless an employee works for a public body, however, 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. 

Given statistics show a high number of relationships start at work a carefully thought out policy which aroid the possible is becoming an essential for employers to ensure flexibility to deal with the issues they give rise to.


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