The difficulty raised by a relationship between colleagues is faced by an increasing number of employers. It can even lead to media interest as recently demonstrated by the allegations involving John Terry's private life and which resulted in him being sacked as captain of the England football team.
How should an employer deal with the existence of a relationship between colleagues?
There is no simple answer, but there are measures that an employer can take in order to minimise potential tribunal claims.
First and foremost, employers must ensure that they have codes of conduct, equal opportunities and anti-harassment policies in place that set out the type of behaviour that is, and is not, tolerated in the workplace. Policies should also set out how the company may deal with workplace relationships so that everyone is clear. However, the existence of policies alone is not sufficient and employers must provide appropriate training to all staff to avoid any confusion as to how the employer will manage the existence of a relationship.
There is no one size fits all answer, so employers must apply their policies on a case-by-case basis while adopting a consistent approach to managing the existence of a relationship including, where appropriate, taking disciplinary action to deal with inappropriate behaviour in the workplace.
What are the potential claims an employer should be aware of?
An employer may face employment claims brought by parties in a relationship, especially where a relationship has deteriorated or has broken down and has not been resolved amicably. Also colleagues may raise allegations of less favourable treatment or claim that their chances of promotion have been diminished as a result.
Sex discrimination is one of the most common claims faced by employers, and statistically it is most likely to be brought by a junior and female member of staff in circumstances where the employer has decided to move the employee to another department as a solution to either dealing with the existence of a relationship or following its breakdown.
Alternatively, an employee may bring a harassment claim against both the employer and the individual under discrimination legislation and the Protection from Harassment Act 1997 where, for example, persistent unwelcome advances continue even after the relationship has ended.
Equally, employers could face a constructive dismissal claim where they fail to address and handle the behaviour appropriately in accordance with the company's policy. There may also be a breach of trust and confidence, as demonstrated by the recent allegations against John Terry, with the result that an employer may decide that demotion is the only solution in light of the fact that the individual concerned is no longer considered suitable to carry out their role.
Finally, a particularly tricky area is the deterioration or breakdown of a relationship between a senior and a junior colleague. These relationships should, if possible, be actively discouraged as not only do they have the potential for an employee to bring a sex and/or age discrimination claim against the employer, but they are often considered inappropriate because they raise a concern that the more senior individual could be abusing their position of authority. If a relationship does develop between a junior and senior colleague then employers should always follow the procedures outlined in their policy documents to ensure all parties are treated equally.
How do other countries handle the existence of a relationship between colleagues?
Employers in the US have adopted policies restricting office relationships by introducing a ‘non-fraternisation policy' or asking employees to sign a consensual relationship agreement commonly referred to as a ‘love contract'. However, these measures are equally tricky in the UK because they raise legal concerns with regard to the invasion of an employee's right to privacy and could be regarded as a breach of an individual's human rights.
Paul Reeves is a partner and Sarah Jones is an associate in the employment practice at Stephenson Harwood