Daniel Isaac, a principal in the employment team at City law firm Withers LLP explains how to manage two employees whose affair is affecting their work.
With long working hours, workplace romances are on the increase. In the US, many employers have policies forbidding romantic relationships at work. These are less common in the UK and unlikely to be enforceable.
Dismissing an employee simply for having a relationship with a colleague is likely to be construed as unfair dismissal, especially as an Employment Tribunal must make any decision bearing in mind the Human Rights Act which enshrines the right to respect for private life.
Although workplace romances cannot be outlawed they may cause problems relating to issues such as confidentiality, perceived favouritism, productivity, conflicts of interest and, if the relationship comes to an end, difficulties working together and potential sexual harassment claims.
With this in mind, some employers have attempted to introduce ‘love contracts’. These require employees to disclose romances and confirm that their relationship is consensual and that they understand the sexual harassment policy. These contracts often also set out ground rules for the couple’s behaviour at work.
The Trades Union Congress describes blanket ‘kiss & tell’ policies as ‘a heavy handed measure, which does not treat staff as responsible adults'. Certainly, unless there is a genuine and substantive conflict of interest, dismissing an employee for not disclosing a relationship is likely to constitute unfair dismissal.
This right to privacy does not, of course, mean that employees can allow a relationship to affect their performance with impunity. If an employee is performing less well because of an office relationship, the employer has every right to confront this as it would for any other form of poor performance.
If formal performance monitoring is introduced, it is important to stress to employees that they are not being singled out for having a relationship with a colleague but that performance standards must be enforced.
If two employees in the same department are having a relationship, it sometimes becomes necessary to ask one to move. Understandably, employers doing so can become nervous that this will lead to allegations of constructive dismissal and/or sex discrimination.
What part does dialogue play in dealing with affairs at work?
