Romance may not be dead, but boy can it cause trouble!
With Valentine’s Day looming, we thought we needed to talk about the burning topic of office romances. You may think that the office affair is a bit of a cliché that only happens in films or in books, but with a quick scoot around the internet, you will find lots of articles covering everything from the ‘do’s and don’ts’ to the cost to British businesses. We came across a recent survey undertaken by Approved Index that seems to suggest that romance at work is actually thriving, with an enormous 65% of workers surveyed having had at least one relationship at work. This got us wondering about how you all manage with that amount of pheromones floating about and whether we had some practical suggestions on managing the bloom of love or the bust of a failed relationship.
The good news is that the Approved Index survey suggests that an employee in the midst of an affair at work, is also likely to be working plenty of overtime. Whether this overtime corresponds to quality work being carried out is another question. An office relationship may also engender an increase in self confidence and a decrease on the level of stress, which is going to have a positive result for the employer.
But very often office romance is bad news. Looking back at our years of practice, an office romance has often been at the root of the problems we have to disentangle, sometimes months or years later. This is probably because the cornerstone of employment law is the concept of reasonable behaviour. As Blaise Pascal (French 17th century philosopher) said ‘Le coeur a ses raisons que la raison ignore’: the heart has its reasons, which are alien to reason. This why office romance can lead to legal issues.
The knock on effect of that relationship can be significant. If the employees are part of the same team, there is likely to be a shift in the team dynamic. This can cause resentment and may shift a good team to one that is not functioning well. For example, if one of the lovers is protective of the other, it may change the way ideas are discussed and refined.
Where one lover is the manager of the other, it may cause complaints of favouritism over such issues as work allocation, holidays and promotion. It also raises questions about the practicalities of work. How can your manager appraise his lover? What happens if that appraisal is subsequently challenged? What happens if the lover gets a pay rise and other team members don’t? It may also put at risk confidential matters, such as re-organisation plans. You can imagine a manager talking to her lover about the company’s plans to make redundancies.
The bigger minefield is when the relationship ends badly. This can result in accusations of bullying and harassment from either party. For example, one employee ends the relationship and she is persecuted by the injured party, who follows her around and is abusive. You may find employees being ostracised or made to feel very uncomfortable and co-workers being asked to take sides in a relationship dispute. Any of these situations could turn into difficult grievances or claims for sexual harassment, discrimination or unfair or constructive dismissal.
Can you have a ‘no relationship’ policy?
Obviously, there are no laws in the UK that make it illegal to have a relationship with someone at work. Some businesses have a ‘no relationship’ rule, where any employees who have a relationship are dismissed. This may seem attractive, given the kinds of problems outlined above. We are not certain that such a dismissal would always be fair. Furthermore, you would have to apply the policy equally to everyone and this could result in you having to dismiss someone who you really want to keep.
It is impossible to police or control someone’s feelings. Rather than forbidding relationships, it may be better to accept that, given the amount of time everyone spends at work, it is likely that you will have to deal with some work romance. Our advice is to have a policy that sets out some simple rules that will help you to limit the damage and to be clear about your do’s and don’ts. These rules can include:
- Keeping the romance to outside working hours
- no fights or arguments in the office
- no consummating the relationship in the office (no matter how thrilling you might think it is to have knee tremble in the stationary closet)
- the duty for a manager to disclose any relationship with someone he or she manages so that the employer can make arrangements regarding appraisals, promotions etc, to avoid accusations of favouritism
- no telling your partner about confidential plans about the business
The policy should be very clear about the consequences of non-compliance. You may also want to check your email/internet policy, to make sure that you can monitor emails and internet access when you think it is appropriate.
Discipline and dismissal
Even if you have a policy, things may still go wrong: romance can sometimes interfere with a person’s ability to make good judgements or act with common sense. If an employee acts in way that is not in the best interests of your business, you will be able to take disciplinary action and depending on the severity of the situation, you may be able to dismiss them.
An example we have had to deal with was a member of staff who bombarded an employee with emails, texts and calls at the end of a relationship, to the point where she was scaring her ex and causing conflict in her team. During meetings, she was scathing of his suggestions. She gossiped about the employee and ran an abusive campaign about him on Facebook.
We helped our client use their disciplinary procedure to terminate the employee’s employment on the basis of gross misconduct, since much of her behaviour was taking place at work.
Some other substantial reason dismissals
There are five potentially fair reasons for dismissal, which are conduct, capability, redundancy, breach of a statutory restriction and some other substantial reason of a kind as to justify the dismissal of an employee holding the position which the employee held. This last reason is a residual catch all reason, which cannot be any one of the other four reasons (that is: conduct, capability, redundancy, breach of a statutory restriction). It is commonly called an SOSR dismissal.
There is no statutory definition of the term. The reason must be substantial and of a kind that would justify dismissal. This will be judged on the facts in each case. The test for fairness in unfair dismissal applies to SOSR dismissals, in that the SOSR must be the sole or principal reason for the dismissal and that the decision to dismiss for the SOSR was reasonable in all the circumstances.
One of the common examples of an SOSR is personality clashes or irreconcilable differences between employees. To be an SOSR, the conflict between colleagues must be causing substantial disruption to the business.
A tribunal will expect an employer to have considered the following:
- redeploying one of the workers (and this must be carefully done to avoid sex discrimination cases)
- changing working patterns
SOSR dismissals must be dealt with carefully so our advice is to take advice before deciding to terminate someone’s employment for an SOSR reason.
We can appreciate that this might sound like office romances are a recipe for disaster. However, with a little careful management, a transparent set of rules and fair treatment, you should be able to deal with most concerns raised by what seems to be fact of working life.
The details of Approved Index’s survey can be found here: http://blog.approvedindex.co.uk/2015/02/approved-index-survey-reveals-shocking-office-romance-statistics/
For more specific information or to discuss your requirements please call either Amanda Galashan or Julie Calleux at EmployEase on 0333 939 8741, or email us at firstname.lastname@example.org.
We hope you find this update useful. This blog does not constitute legal advice on any particular situation you may have.
© EmployEase 2015