Whilst there are no explicit laws governing workplace relationships in the UK, the ‘office romance’ can be a potential headache for employers, giving rise to a host of employment law issues, including discrimination, harassment and unfair dismissal.
Although employers may be keen for employees to get to know one another socially as well as professionally, employers need to be aware of the steps they can take to address these potential issues. We have therefore provided an overview of the recent cases.
Workplace relationship claims – constructive dismissal
In Wilton v Timothy James Consulting Ltd the Tribunal found that an employee had been constructively dismissed as a result of the impact of various intimate relationships in her working environment. O (a CEO) had previously been involved in a personal sexual relationship with W (a manager). O was now in a relationship with D (a consultant). O continually undermined W’s authority over D by for example, directly authorising holiday when it had previously been refused by W. W felt humiliated and eventually resigned. The Tribunal found W had been constructively dismissed. Employers should ensure that, if relationships do occur, they do not lead to preferential treatment between the couple in question, with an adverse impact on their colleagues.
Workplace relationship claims – direct discrimination
In Mawdsley v Academyline Corporate Ltd, M was dismissed by S purportedly on the grounds of dishonesty. However, the Tribunal found that M had been dismissed as she had told S she did not want their sexual relationship to continue and after this S’s attitude to M changed; he called her a ‘tart’, checked up on her movements and criticised her. The Tribunal found that this conduct constituted harassment related to sex and M’s subsequent dismissal amounted to sex discrimination. Whilst this case turned on its own specific facts, employers should be aware that Tribunals will look into the background of each case, to identify whether the purported reason for dismissal is in fact the real reason.
In contrast, there have been a number of cases where the Tribunal has found that the dismissal of an employee as a result of the breakdown of a personal relationship did not fall within the definition of direct discrimination. The Tribunal has found that employees were not discriminated against ‘because of’ their sex but because of the breakdown of a personal relationship. In such cases, the questions are whether a comparator of a different sex who had been in a personal relationship would have been treated in the same way and whether a comparator of the same sex who had not been in a personal relationship would not have been treated that way.
Workplace relationship claims – harassment
Harassment is the most common cause of action pursued in relation to conduct associated with workplace relationships.
In Plange v Cambria Automobiles (South East) Ltd, P was employed as a services adviser in a car show room. P had a short, consensual sexual relationship with B, the general site manager. When P’s employment was brought to an end, she complained she was sexually harassed by B. The Tribunal found B had sexually harassed P by making various comments of a sexual nature and by touching her inappropriately.
In Marks v Derbyshire Healthcare NHS Foundation Trust, B continually pressured M to have a sexual relationship with him. When M refused, B instigated unfound allegations of bullying against M by asking other members of staff to raise complaints in an attempt to push her out of her job. M raised a grievance and subsequently resigned. The Tribunal found M had been constructively dismissed and was subject to sexual harassment. The Tribunal also found that the dismissal amounted to an act of direct sex discrimination.
Vicariously liable for your employee’s actions
Under the Equality Act, anything done by a person in the course of his or her employment must be treated as also done by the employer, unless the employer can establish the ‘reasonable steps defence’. As a result of this, the employer can be held liable for the actions of its employees as outlined in the claims above.
Steps to take to minimise risk
In light of the above and given the employer’s liability depends on the steps the employer has taken to prevent such conduct occurring (the reasonable steps defence), employers may wish to consider:
- Staff training, particularly to those with line management responsibilities, about the issues that can arise from workplace relationships.
- Whether general policies cover this kind of conduct e.g. equal opportunities, bullying and harassment, disciplinary, etc.
- Whether it would be appropriate to implement workplace relationship guidelines – please note that in the UK there is a right to privacy so such a policy would need to be necessary, reasonable and proportionate.