Fabio Grech, partner at Berry Smith and Employment law specialist, discusses how workplace relationships can potentially impact on your business.
I recently advised a business owner struggling with the consequences of an office romance between his business partner and a junior employee. His early reticence to challenge what was clearly preferential treatment by his business partner had, in some part, contributed to the rapid promotion of the individual concerned. If managing the impact this had on the rest of the workforce wasn’t hard enough, he was also facing a business coup by the happy couple who were planning to split-off half the business.
Workplace relationships are a simple fact of business which every employer will encounter from time to time. Some will say the cons always outweigh the pros, giving reasons such as loss of productivity, damage to morale, undermining egalitarian principles etc. Others will insist that the shared energy and intimacy of a relationship can make for good business chemistry and actually bolster productivity and success.
Over my years of advising employers, the romantic interplay between colleagues has presented itself through a variety of legal issues which reaffirm why I originally opted for people-based (rather than transactional) law. I cover a few of these below:
For every display of true love in the workplace, there’s an equal number of failed relationships and (worse) unwanted advances. I regularly advise where previously consensual exchanges have become unwanted after a relationship sours. In that scenario, the boundaries have blurred. But the law is clear – any persistence of unwanted conduct when it ought to be clear that it is unwelcome, will amount to sexual harassment.
Can I dismiss because of an employee’s relationship?
A blanket ban on workplace relationships, resulting in dismissal is unlikely to be fair of itself. You may also have to meet sex discrimination allegations if the impact of such a policy disproportionately affects one gender group over another.
I am however sometimes asked to advise if a partner can be dismissed by association. This could be in circumstances where the ‘other half’ is a threat to the business. For example, an employee may have been dismissed for competing with the business, leaving a spouse behind. In certain circumstances it may be fair to dismiss the innocent spouse if they present a genuine threat to confidential information. Obviously, a fair process would need to be followed.
But surely this amounts to marriage discrimination?
Not necessarily. It’s true the Equality Act makes provision for marriage discrimination but, to succeed, a spouse must show that it was the fact of their marriage that underpinned the employer’s conduct. If the employer would have treated a long term (but unmarried) partner in the same way, then it’s not discrimination. By contrast, the dismissal of a vicar because their marriage breakdown was deemed to be inconsistent with the Church’s message on marriage was found to be discriminatory. An unmarried vicar breaking from a long-term relationship would not have been treated in the same way.
Business protection issues
My client example above gave rise to business protection issues in circumstances which might not have arisen had the couple been mere colleagues. Before we all rush to introduce non-fraternisation policies, we must accept that businesses are equally susceptible to a range of (platonic) alliances amongst the workforce. But the case in point did bring to light an absence of basic corporate governance and contractual protections which are essential in any business, but especially in this context.
‘Love contracts’ and privacy rights
Having advised various US clients with businesses in the UK, I have seen the occasional policy which requires employees to disclose any workplace relationships. Similarly, I have seen Codes of Conduct interpreted widely so as to forbid managers from having flings with junior staff. This is becoming increasingly popular amongst UK employers in the wake of #MeToo. It remains to be seen how such policies could be argued to contravene human rights of privacy or even equality legislation, but presumably employers would assert that they are in pursuit of a legitimate aim of protecting more vulnerable workers and also avoiding conflicts of interest.
In my experience, the employment relationship rarely emerges unscathed following a divorce or break-up. At best, it can result in awkwardness amongst colleagues but, equally, it can impact on productivity. Relationship break-ups can also result in off-hand behaviour which quickly turn into allegations of bullying and harassment. Frequently one party may leave the business, impacting on service levels. Worse still, if the estranged couple are business partners, the break-up can have a lasting impact on the direction of the business.
Is romance dead?
Businesses are misguided if they genuinely expect to restrict romance at work. Employees spend the majority of their waking hours alongside like-minded colleagues, in pursuit of a common purpose. It’s hardly surprising that cupid’s arrow strikes now and then at work. Policies which seek to constrain workplace relationships will only succeed in making sure they happen out of sight, which does little for your workplace culture. Far better to accept that it’s a fact of business life and (provided you are live to the potential issues) it’s nothing that some well drafted documents and sound corporate governance can’t handle.
For further information or discussions please contact Fabio Grech, partner and employment law specialist at Berry Smith Lawyers.
Tel – 029 2034 5511
Email – email@example.com