Harcus Sinclair v Your Lawyers - Another nail in the coffin of solicitors’ undertakings?
For all those 50 Shades readers out there, this is not what you think. ‘Love contracts’ and policies on romantic relationships in the workplace however are, like the book, becoming more prolific and mainstream.
A love contract is a document that two employees in a relationship sign to confirm that they have not been coerced into the relationship with a view to preventing sexual harassment claims later down the line. A policy on romantic relationships in the workplace would normally be found in the Staff Handbook and require an employee to advise senior management or HR of the relationship and to be discreet. The policy would also normally prohibit a manager from dating an employee in their reporting line and would include safeguards to protect confidential information. Love contracts are commonplace in the US, whilst relationship policies are becoming more usual in the UK.
The starting point is that an employer will normally be held to be vicariously liable for its employees’ actions while in the workplace and at work place events (Christmas parties, client dinners and drinks…). This was illustrated most clearly by an unusual and questionable decision by the Federal Court of Australia which held that an employer was responsible for a work place injury which occurred while the employee was having sex with her partner in a hotel room while on a business trip.
Discrimination and harassment law in the UK covers all areas of the employment relationship from beginning to end, including job adverts, recruitment, conduct during employment, work social events, dismissal and giving references. If a relationship between two employees has or is likely to have an impact on working relationships, contrary to the British instinct to not meddle in people’s private lives, it is an employer’s business. Romantic relationships in the workplace are likely to increase given that we are working longer hours and there are more women in the workplace.
Harassment is any unwanted physical, verbal or non-verbal conduct which has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. A single incident, if sufficiently serious, can amount to harassment. You can see from this definition how easily an employer could become liable for the fallout from a relationship between two employees which has gone wrong, as it depends on the subjective opinion of the employee concerned.
The other big risk is an indirect discrimination claim. It is generally accepted that it is not good practice to have two employees in a relationship when one is subordinate to another and in the same reporting line. If you always transfer the junior employee (who is statistically more likely to be female) to another department as a solution however, then you are at risk of them bringing an indirect sex discrimination claim.
So, what should you do about it? It is good practice to have an Equal Opportunities policy and an Anti-harassment and Bullying policy in your Staff Handbook. It is also good practice to run anti-sexual harassment training on an annual basis and ensure that all your employees attend and sign a training sheet confirming that they have done so. This way you have discharged some of your responsibility and could rely on the “reasonable steps” defence, if necessary. Managers should be alert to the possibility of workplace romance and manage it carefully. Difficult or ackward discussions regarding team re-structuring or a departmental move because of a romance should not be avoided but approached sensitively. Management should also be alert to actual or perceived unfairness with regards to promotions or pay rises as well as allocation of daily work, as a result of these relationships.
Employees should also be encouraged to be upfront with their managers about any workplace relationships. As a firm, we are often instructed to conduct internal investigations and called in as an external, independent party to a company to investigate potential malpractice either before or after a regulator has got involved. In the course of these investigations, previously unknown relationships between employees often come to light. Unknown relationships in the workplace, between junior and senior members of staff particularly, can be risky from an HR perspective, so it is best to create a culture in which these relationships are disclosed to management or HR and the right protective systems can be put in place.
It is a difficult to strike the right balance between encouraging socialising and a fun culture and creating situations in which harassment or romantic mistakes between employees which could threaten the effective running of your organisation, are more likely to happen. One also has to consider an employee’s right to a private and family life. For those genuine relationships however, I would suggest that love contracts may be a step too far but perhaps UK companies should think about including a dating or marriage policy in their Staff Handbook. Perhaps the main point to take from this is, don’t let the UK stiff upper lip and the instinct not to meddle in other people’s private lives lead to a situation that creates a commercial risk for the effective running of your organisation.
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