Valentines Day is almost upon us and, once again, love is high on the agenda! 

For those of us who refuse to debase ourselves to the commercialisation of romance, there are an equal number (if not more) who fly in the face of the sceptics, embracing the moment with wild abandon. 

I  know which one I am….after all, those heart-shaped chocolates won’t eat themselves….!

But as Cupid prepares once more to draw back his bow, it is worth bearing in mind the (relatively) recent study undertaken by Forbes Adviser[1] into office romances. 

The results are interesting, though perhaps unsurprising when you consider how much time people spend at work. The statistics revealed  that 60% of adults have had a workplace romance, 43% have married someone they work with and 40% have cheated on their partner with a co-worker. 

Now, I’m not the fun police…. but I am an employment lawyer. I can’t help but consider the risks.

When things go right – happy days for the couple.  But what of the impact on co-workers and how can this be managed? 

When things go wrong, things can get messy. 

Very messy. 

Very quickly. 

This article considers the practical and legal risks and issues associated with workplace romances, and provides advice and guidance on how to manage and mitigate the effects of any fall out. 

Clearly, there is no law preventing workplace relationships.  How a business feels about co-workers becoming romantically involved is a policy decision rather than a legal one. Some organisations prohibit workplace relationships completely (although realistically, this position is likely to be difficult to police); others simply require disclosure of them, so that any necessary safeguards can be put in place.   

Any decisions your business takes in this respect, should include consideration of the following: 

1. The duty to prevent sexual harassment in the workplace

Sexual harassment is defined by the Equality Act as “..unwanted conduct of a sexual nature that has the purpose or effect of violating the recipient’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment…”. 

It is the subjective perception of the recipient that is key.  The intention of the harasser is not relevant. Likewise, the recipient does not need to have advised the harasser that the conduct is unwanted. 

The law has always provided an employer with a defence to harassment and sexual harassment if it can show it has taken all reasonable steps to prevent the conduct in question. However, until now, there has been no positive requirement on them to do so. This is going to change. 

In October 2024, employers will be under a positive obligation to prevent sexual harassment in the workplace. This means it will be mandatory (not just recommended, assuming one wanted to rely on the “reasonable steps” defence) to put in place measures to prevent sexual harassment and reduce the risk of it occurring within the workplace.

We are currently awaiting updated guidance from the Equality and Human Rights Commission as to what those “reasonable steps” might look like, but it is likely to involve putting appropriate policies in place, training staff and managers (and providing refresher training), prescribing acceptable conduct for workplace social events, setting up confidential reporting systems, carrying out sexual harassment risk assessments and taking swift and decisive disciplinary action where sexual harassment has occurred.  The Tribunal will have additional powers to increase compensation by up to 25% where it finds employers have failed to take pro-active steps to prevent sexual harassment, and so both the financial and reputational fall out for failing to do so, could be quite significant. 

2. Marital and Civil Partnership discrimination

Marriage and Civil partnership is a protected characteristic under the Equality Act. Any direct or indirect discrimination, harassment or victimisation because a person is married or is in a civil a partnership, therefore, is prohibited. 

As things currently stand, it is the status of marriage/civil partnership that is protected. This means that, to date, it has been difficult for employees to bring claims arising from less favourable treatment on account of their marriage or civil partnership, as employers could avoid liability by arguing that such treatment is not on account of the marriage/civil partnership, per se, but because of who they are married to. 

The protected characteristic of marriage and civil partnership arose from the  historic requirement on women to leave their jobs as soon as they got hitched.  However, the outmoded premise for this protection no longer aligns with the reality. in today’s modern workplace, it is only a matter of time before the law catches up.  For this reason, any express or implied understanding that co-workers who are either married or in a relationship cannot (or should not) remain in the same organisation, should be treated with some caution, unless there is a very good reason not to do so. 

3. Any imbalance of power and the risk of bullying

There is no legal definition of, or prohibition on, “bullying” either in or out of the workplace. Nevertheless, it is generally described as intimidating or malicious behaviour arising from the misuse or abuse of power. 

It doesn’t take much imagination to envisage where and how such abuse of power might manifest itself in the workplace.  Trainee/supervisor relationships are clearly a vulnerable area, and any budding office  romance between them should naturally ring alarm bells (even if it is entirely consensual). 

Aside from the legal issues that might arise, there are also some clear practical risks. 

Although the couple involved in a workplace relationship may be happy enough, it can nonetheless affect the morale within the wider team and workforce. 

The perception that a colleague may be getting special treatment, inside knowledge or fast-tracked up the career ladder, means that a business will need to work harder to ensure those suspicions are not realised. 

Changing reporting lines (if possible), ensuring all promotion, appraisal and remuneration  processes are independent, and reminding each party of the importance of confidentiality will go some way to assuaging staff concerns. 

If the relationship breaks down, matters can become more tricky. 

Employers are not relationship counsellors.  Nor should they be.  In an ideal world, they should be able to rely on romantically involved employees to behave professionally in the workplace. In reality, this may be naïve.  

Clearly, there is no “one size fits all” approach to addressing the fall out, as couples tend to deal with break ups differently depending on who they are and how long they have been together.  However, any unprofessional behaviour in the workplace should be treated in the same way as any other conduct issue (with disciplinary and grievance procedures updated to reflect this).  Employers should also bear in mind that it takes two to tango; if one party is being disciplined,  consider whether the other needs to be too.  Neither job title nor seniority should serve as an effective shield against unacceptable conduct. 

There is a fine line between protecting the business and respecting employees’ right to privacy.  Rarely will it be appropriate, or even possible, to impose a complete ban on workplace relationships and a balance will need to be struck between the need for the employer to manage the risk and for employees to form meaningful relationships with their colleagues.  

Many employers therefore, opt to put in place a Relationships Policy to regulate these types of situations. The substance of such a policy is likely to vary from business to business but it could include matters such as:  

• the types of relationships within the scope of the policy;
• a requirement to advise HR of the relationship in certain circumstances (e.g where there is imbalance of power);
• avoiding conflicts of interest;
• cross-references to disciplinary and grievance procedures;
• acceptable conduct both within the workplace and at social events; and
• guidance for line managers. 

Conclusion

As I said, I’m not the fun police. I’m a Romantic. I cry at weddings and I love a good RomCom. Everyone should have a chance to meet their “one”, wherever and whomever that may be. 

All I would advise is that workplace “fun” should be organised and controlled.  As per the oft-quoted Monica from Friends: “Organised Fun is the Best Kind!” 

As an employment lawyer, I can only respond with ….

…. ain’t that the truth!

If you would like advice or assistance with any of the matters raised in this article, please contact Prettys Employment Team on 01473 232121

[1] https://www.forbes.com/advisor/business/workplace-romance-statistics/