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Feb 11, 2016

Broken HR-ted: The legal issues of workplace romance

Recent Office Genie research found 36% of us have had an office romance at some point. While many of these end well, a significant proportion of flings can be ticking HR time bombs. If things go wrong (or even occasionally when things go right) there are a number of regulations that could potentially be breached.

With Valentine’s just around the corner, we’ve put together a panel of experts to help us navigate the legal minefield that can be romance in the workplace:  Zee Hussain, partner in the employment practice of Simpson Millar; Declan Bradley, solicitor at workplace lawyers Doyle Clayton; and Luke Hutchings, head of employment at Taylor Rose KKTW. You can read their thoughts in our ultimate guide to workplace romances below:

For employers: Developing workplace romance policies

With the help of our experts, Office Genie have summarised the most important legal matters around workplace romance and how you might establish a policy to avoid these:

Potential legal issues surrounding dating in the workplace

There are a number of potentially thorny legal issues of which a business could fall foul:

  • Bullying: If a staff member is targeted, either for rejecting another’s advances or after a break up
  • Favouritism: If a manager is seen to be giving favourable treatment to a romantic partner
  • Harassment: If (persistent) advances lead to employees feeling harassed
  • Unfair dismissal: If an employee is fired as a result of any of the above

Harassment has particularly strong and relevant legislation surrounding it: Under the 2010 Equality Act it is defined as ‘unwanted conduct related to sex or of a sexual nature which has the purpose or effect of violating a person’s dignity.’

According to our experts this could include things such as sending a Valentine’s card, particularly if it contained (or was seen as) a suggestive message or sexual advance. If this, or similar, acts are reported more than once then this will likely constitute harassment.

Creating a workplace romance policy

Our experts all recommend workplaces develop a policy on colleague romances. So what should one entail?

  • All experts suggested employees should have to discreetly divulge any relationships – particularly if they are between a manager and a member of their team
  • Bosses should even consider banning relationships between senior and junior team members altogether – to avoid accusations of favouritism
  • A total ban on public displays of affection in the workplace
  • Warn employees they will face disciplinary proceedings if they contravene policy
  • However, ensure the policy does not infringe upon employees' private lives
  • In general, it is advised employers should have strong policies on harassment and bullying - in case office romances turn sour

For employees: Answering the frequently asked questions

We ran a few of the most pertinent questions surrounding workplace relationships past our legal experts. You can find their thoughts below (and no, PDA in the office is never OK):

Do I have to tell my boss if I’m having an office romance?

ZH: There is no legal obligation for employees to inform their employer of their office romance; though conscientious employees may decide to do so, many couples will want to keep the fact of the relationship private.

LH: The worry for employers is the impact the end of a relationship will potentially have, they naturally want to protect themselves should things turn sinister and grievances and matters such as sexual harassment arise.

Discreetly disclosing the relationship to your superior enables them to effectively manage the situation and prepare for any complaints co-workers may make, or conflicts of interest.

DB: It might be a sensible course of action, particularly if your personal relationship may impact on your work.  Your employer may be able to avoid conflicts arising, for example, by putting you in different teams.

Can my company ban workplace romance?

DB: An outright ban on workplace romances would be difficult to enforce from a practical perspective and could also breach employees’ right to a private life under the European Convention of Human Rights. 

Far better to limit any ban to relationships between managers and subordinates and require relationships to be disclosed so the employer can take steps to manage any impact on the business.

On relationships with clients however - that’s a story for another day!

ZH: Even if a ban were imposed, and an employee acted in breach of it, the employer may well be acting unreasonably in taking disciplinary action.

LH: A policy that completely bans romances in the workplace is unreasonable and employers generally don’t want to create a culture of uncertainty and mistrust.

Can I get fired for having an office romance?

DB: Generally you can’t be fired just for having an office romance, unless your employer has a policy on workplace romances of which you have fallen foul.  However, you may be fired for inappropriate behaviour, such as intimacy in the office (or in front of clients) or showing favouritism.

You may be fired if your love interest decides to end the relationship and you then exact your revenge by bullying them, or if you pester them constantly to rekindle the relationship.  Bullying and harassment amounts to gross misconduct entitling your employer to dismiss you without notice. 

Will I have to sign a love contract to absolve my employer of responsibility if things go wrong?

ZH: Love contracts’ – where the couple agree contractually with their employer that the relationship is consensual – are often used in the US, as a guard against sexual harassment claims. They are far less common in the UK, due to the difference in harassment laws. Employers are, however, well advised to introduce a sensible policy on workplace relationships.

LH: If your company is trying to get you to sign an agreement which restricts workplace relationships, this may breach your rights under Article 8 of the Human Rights Act of 1998 (Everyone has the right to respect for his or her private and family life, home and correspondence).

My partner was fired - Do I have to go too?

LH: If the circumstances surrounding their dismissal involved you too then very possibly, for instance – if you were both caught in a compromising position at work for example. This could be considered gross misconduct and dismissal of both parties could happen.

If a matter unrelated to your relationship has led to the dismissal then there is no reason you should have to leave, and pressure to do so could be viewed as constructive dismissal.

DB: Employers do have to be careful not to treat employees inconsistently where their circumstances are truly parallel as this could make a dismissal unfair. They also need to be careful to ensure the reason for dismissal is not discriminatory.

Are any displays of affection (PDAs) acceptable in the office?

LH: Public displays of affection are just not appropriate in the workplace in any way, shape or form. You may find your company has clear guidelines relating to this behaviour in place, outlining what they consider to be acceptable in the workplace. Failing to adhere to these rules could lead to disciplinary action, particularly if co-workers are made to feel uncomfortable.

DB: They are unprofessional and could in some circumstances constitute harassment of those who are forced to endure them.

About the experts

Zee Hussain is partner in the employment practice of Simpson Millar, his particular focus is corporate law. He founded and manages Simpson Millar’s HR consultancy, HR Oracle.

Declan Bradley is an employment lawyer at workplace lawyers Doyle Clayton, with a focus on advising employers, and senior executives, across a range of industries including technology, media and finance.

Luke Hutchings is head of employment at Taylor Rose TTKW, he instructs in cases involving both employees and employers and has unique expertise from working on both sides of the fence.

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