The Legal Eagle: Love, lust and litigation


Valentine’s Day might have been and gone for you, but what about your employees? Kevin Poulter writes on the perils of love in the workplace

Christmas parties may be a distant memory, but in spite of most relationships forged during a festive drunken binge being over by Valentine’s Day, some may still be flourishing. 

Whether this is behind closed office doors or out in the open plan, office romances can cause headaches for employers and pose tactical dilemmas for managers and employees alike.

Office romances are inevitable at any time of the year, but especially between mid-December and mid-February when cold nights do nothing to quell hot passions. The season runs the risk of turning the office into a soap opera with stories about colleagues being shared around the coffee machine and anonymous cards being sent through the internal post. 

Should companies restrict ardour in the office, or let love run its course?

When conducting its own affairs, business is rarely susceptible to romance. Instead it prefers cold hard facts, dispassionate theories, and reliable working partnerships. But it would also be wise to have a similar approach to its internal relationships. 

“The Equality Act 2010 makes harassment related to sex illegal and, as a matter of course, the employer will be liable for the actions of its employees”

As with most things, preparation is key, and prevention is better than cure. Forward planning is certainly less costly in terms of time (and legal fees). Below are some points to consider in relation to your own business and recommendations intended to avoid any unwanted surprises.

Review your policies

Many employers will already have policies in place to protect against the worst threats posed by office relationships.

Sex discrimination and harassment policies are commonplace, these are always recommended so as to clearly establish the boundaries for conduct in the workplace. 

The Equality Act 2010 makes harassment related to sex illegal and, as a matter of course, the employer will be liable for the actions of its employees. Sexual harassment occurs where it is the perception of the recipient that she (or he) is subjected to unwanted conduct where the purpose or effect is to create an intimidating, hostile, degrading, humiliating or offensive environment.

In these terms it is easy to see how claims can arise even in the most sincere of circumstances.

However, by demonstrating that, as an employer, you have taken all reasonable steps to avoid the alleged harassment from occurring, the presumption of liability of the employer can be discharged. Strict policies properly communicated to employees and enforced accordingly will go a long way in defending such claims and in shifting the liability to the employee.    

Does this mean that a ban should be placed on the sending of Valentine’s cards or bunches of flowers between colleagues?  No. 

Well, not necessarily. 

For most people Valentine’s Day is a bit of fun. But it is important to remember that it is not the intention of the parties that is key, but the perception of those receiving the attention.

As well as harassment and victimisation policies, it is sensible to review your IT and communications policies. Personal emails and telephone calls from office equipment are often cast a blind eye, within reason, even where the policy prohibits them. However, if an employee is making a nuisance of him or herself from the office, especially in work time, the employer can again be considered responsible for his or her actions. 

Where necessary, take action and regularly review your policies, reminding employees of their existence and the reasons why they are there.

Risk of bias

What happens if a relationship does grow in the office? Some employers actively prohibit workplace romances from happening whereas others positively encourage them. 

Office romances not only affect those employees directly engaged, but can often unsettle the whole office environment. Where the relationship is across levels of seniority, particularly between a manager and an employee reporting to them, difficulties can arise that affect the business more generally – usually by allegations of favouritism or bias. 

Sometimes the parties themselves can act inappropriately, being unduly critical or difficult with the other in an effort to overcompensate for their personal relationship. If this occurs, an employer should approach them sensitively and tactfully, considering all the circumstances and options available to the business. It might be possible to change reporting lines or management structures to avoid possible conflicts or issues arising. 

It is sometimes possible for one of the parties to move to a different floor or office, but this should always be with informed and written consent.

“A few years ago, love contracts were considered a way around employment laws – a clear set of rules set out between the company and the couple concerned. Unsurprisingly, this American way of doing things didn’t really catch on”

Avoiding awkwardness

Gossipping around the water cooler and allegations of favouritism can all add up to an unpleasant, even hostile atmosphere. 

Where such relationships are outlawed, secrecy and fear can lead directly to lower levels of productivity and a breakdown in professional working relations.  A few years ago, love contracts were considered a way around employment laws – a clear set of rules set out between the company and the couple concerned with an agreement that neither would bring a claim against the company in the event that the relationship soured. 

Unsurprisingly, this American way of doing things didn’t really catch on.

Any suggestion of inappropriate behaviour should also be dealt with early. Staying late in the office should only be for professional reasons and amorous conduct should be kept to outside the workplace.  Even drinks in the pub on a Friday evening can be considered an extension of the workplace and claims of improper conduct can be the responsibility of the employer. 

So, it is important to strike the right balance that suits your company. There can be nothing wrong with office romances; a happy workforce is a productive one, or so the saying goes. However, it can often be a mistake to mix business with pleasure, particularly if you are a dispensable part of the team.  Every situation is different, but managers should be alert, be aware and be careful when dealing with affairs of the heart.

Kevin has been an employment lawyer for just over 10 years. Having qualified in Yorkshire, he is now an Associate with London firm Bircham Dyson Bell. He specialises in advising commercial clients on all manner of employment and human resourcing issues, specialising in workplace relations, restructuring, business transfers and discrimination.