Illicit affairs: Legal best practice for workplace romance

Indeed, workplace romances can be problematic for those involved if the romance doesn’t work out or creates tension in their roles. In addition, it can be a source of frustration for colleagues and present challenges for managers or business owners.

Not only can an office relationship be distracting, it can generate complaints of unfair treatment and claims of favouritism. In addition, it can also enable an abuse of power, or lead to discrimination or sexual harassment claims. What’s more, bad behaviour by employees in a relationship could generate reputational damage for the company.

What employers can do

Regulating workplace romances can be very challenging for employers. As an employer, whether you are engaged in a workplace romance yourself, or you want to ensure colleagues’ romances do not negatively impact the company, you will need to navigate this task thoughtfully in order to avoid potential employment claims.

Generally, an employer’s approach to workplace romance falls into one of four categories:

  • the business has no policy relating to in-company dating
  • dating between colleagues is expressly banned
  • dating between colleagues is allowed but must be disclosed (and an agreement may need to be signed to clarify the relationship and any related provisions)
  • dating between colleagues is allowed but not where there is a significant imbalance of power, such as between superiors and subordinates

In reality, an outright ban on dating between colleagues is likely to be unworkable. It encourages secrecy, which makes it harder to manage the situation and it may breach individuals’ rights for respect of their private and family lives, as enshrined in the Human Rights Act.

In some professions, employees can be banned from entering relationships with those to whom they provide their services because they are inappropriate or could create a betrayal of professional trust, such as a relationship between a teacher and student or doctor and patient. In most professions, though, such bans are not defensible. However, employers can retain the right to make certain employment decisions as a result of workplace romances, such as transferring one employee to another team or changing lines of report to avoid any conflict. Although such decisions need to be exercised with care to avoid arguments of discrimination on the grounds of marriage or civil partnerships or sex discrimination (if one party to a relationship is moved and not the other).

‘Love contracts’

More common in the US, some UK companies choose to manage the risks of office romances by implementing consensual relationship agreements, which are colloquially called ‘love contracts’. The purpose of these agreements is to make clear what behaviour is acceptable and to provide perceived legal protection for the company, by having both parties acknowledge the circumstances of their relationship. The agreement typically clarifies that the relationship is mutually consensual, and that it can be ended without professional recrimination by either party and that both signatories agree not to let the breakdown of their relationship negatively impact their work performance.

In addition, the signatories will have to confirm that, prior to signing the agreement, they have received, reviewed, and agree to any relevant policies and procedures that the employer may have (such as an equality and diversity policy, harassment and bullying policy, disciplinary and grievance policy, or even a more specific workplace relationships/sexual harassment policy). They can be asked to confirm that they understand what is appropriate and acceptable within the relationship – both while the relationship exists and if it were to end. The agreement may also stipulate that, by signing it, both parties acknowledge that the relationship doesn’t constitute sexual harassment, that it is voluntary and not a condition of employment. However, in practice , whilst a love contract may be used by an employer to show that they had taken reasonable steps to prevent discrimination in the workplace, it is unlikely to offer much protection to an employer in a tribunal, as in the UK, you cannot be made to sign away your rights to protection from discrimination and sexual harassment (except, after the fact by way of a binding settlement agreement upon which the employee has the right to take legal advice). An attempt to force employees to sign a love contract may also contravene their rights to a private and family life under the Human Rights Act.

More commonly, companies rely on their code of conduct or employee handbook to dictate how staff should manage their affairs and to outline the formal and informal procedures in place to handle problems.

A balanced approach

While some options for managing the risks that come with workplace romances may seem out of scope for your business, you could seek to show that you are taking reasonable steps to avoid discrimination in the workplace by adopting a more moderate approach. For example, implementing a workplace relationship policy or updating your existing policies and procedures to cover situations that may arise from relationships in the workplace and their breakdown. While this wouldn’t ban employees from having office romances or force them to sign a love contract, it would clarify any action they may need to take or avoid.

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