With the special relationship between the UK and the USA currently dominating the headlines as we watch the rather unwholesome spectacle of President Trump and Prime Minister May attempting to find common ground on which to take this historic relationship forwards, and not forgetting that Valentines Day is approaching, Julie Dalzell, considers the issues that can arise for employers in respect of relationships that begin amongst work colleagues and how such matters might be addressed.
Romantic relationships between work colleagues can give rise to all sorts of difficult and sensitive issues developing, particularly were one or both employees are already in a relationship, or were the relationship is between a manager and a more junior member of staff, or the relationship comes to an acrimonious end.
One possible approach might be to have a Relationship at Work policy. However these are not common within the UK workforce (save in certain sectors such as the police). This type of policy tends to require employees to disclose certain relationships to the employer so that appropriate safeguards can be put in place, rather than prohibiting personal relationships altogether, which is unquestionably the right approach since any ban on personal relationships would surely be a draconian measure akin to an employer with the mind set of Mr Trump, if not his moral code, and might well be an unjustified breach of article 8 of the Human Rights Act 1998 (right to respect for private and family life).
It is perfectly permissible for employers to stipulate within a policy that managers are required to disclose personal relationships and that failure to comply with that obligation is a disciplinary offence. It would not be reasonable or necessary to impose such an obligation on all staff.
Whether it would be fair and reasonable to dismiss a manager in breach of the requirement would need to be considered in each individual case and the usual unfair dismissal rules would apply. One of the relevant factors would be whether the policy was contractual or not, and whether the employee was (or ought reasonably to have been) aware of the policy.
One area of difficulty is the definition of a personal relationship and when the duty to disclose is engaged. If the policy is not clear then individuals may not believe that they are required to disclose a relationship in its early stages, or one that does not progress. Often policies only require disclosure where there is a conflict of interest, or breach of confidentiality.
The employer would also need to give consideration to data protection issues, such as to whom a disclosure is made, who would have knowledge of the disclosure and who would have access to records.
If the dismissal was on the grounds of the nature of the relationship rather than a failure to disclose, the employer would need to consider whether there was some other substantial reason justifying dismissal, or whether the facts permitted a dismissal on conduct grounds.
These considerations would come into play were the nature of the relationship was giving rising to issues within the workplace such as significant disruption to a team because of a perception of favouritism, or breaches of confidentiality caused by an improper sharing of information, or allegations of harassment or discrimination arising if the relationship falls apart, or one employee has placed a different meaning on it than the other party. All such matters would fall to be addressed within “standard” workplace policies and procedures such as disciplinary, grievance, equal opportunities or whistleblowing, or via a mediation process, or a “protected conversation”.
Some other substantial reason dismissals can be used in circumstances where there is no actual misconduct as such but the nature of the relationship, or the fact that it has broken down, makes it impossible for the employer to continue to employ one or both of the parties, although the employer would first need to explore other options such as a change of location, or role for one or both parties to address the concerns with dismissal as a last or only option.
If any advice is required in this area please contact a member of our team. We do not profess to be experts in matters of the heart (we leave that to our family law colleagues) and even less so in international diplomacy, but we promise you expert, speedy and pragmatic advice on how best to tackle workplace disputes arising for any reason not only those mentioned in this article.
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