How to handle office romances in the aftermath of #MeToo

The #MeToo movement empowered victims to share their experiences on social media and demonstrated the prevalence of sexual harassment in society. As a result, many employers are reviewing how they should deal with workplace relationships which can give rise to sexual harassment or discrimination claims, especially where relationships break down.

Employees spend on average 90% of their day with their work colleagues, therefore it is not surprising that the workplace is reported to be the second most popular way to meet a significant other. 15% of people report having met a significant other in the workplace (source: reportlinker.com). Given that employees are also working longer hours, the chance of romantic relationships at work could be on the rise.

The starting point is that an employer will normally be held to be vicariously liable for its employees’ actions in the workplace or at work related events. This is problematic in the case of workplace relationships, as such relationships may give rise to complaints of unfair treatment, favouritism or abuse of power, as well as discrimination and sexual harassment.

Where a relationship involves a senior and more junior employee, even where no complaint has been raised by the junior employee, they can invite the question whether the more junior employee acted entirely consensually or whether they somehow felt obliged to go along with the situation, fearing that to do otherwise would in some way damage their career prospects. In an effort to protect itself against potential claims by employees arising as a result of such relationships, an employer should have, as a minimum, Equal Opportunities, Anti-Bullying and Harassment policies in place. Ensuring that employees are aware of such policies, ideally with training on diversity and inclusion and prevention of harassment, which can be useful evidence towards demonstrating that the employer took all reasonable steps to prevent later unacceptable behaviour.

As a more specific solution, the employer could consider having a Workplace Relationships policy. A study has found that one in five UK employers already have such a policy in place (source: namely.com).

The following options could be considered in such a policy:-

  • An outright ban on romantic relationships – However, this brings up concerns about employee rights to private life, may be difficult to enforce and simply encourage secretive relationships without the employer’s knowledge, limiting the employer’s opportunity to damage control.
  • A policy of reporting relationships – Employees should be encouraged to be upfront, but note that insistence on such disclosure may also be a breach of the employee’s Article 8 right to a private life. It is advisable that employees are expected to use their own judgment on how the relationship might impact on their colleagues and the potential consequences of the relationship breaking down or if the relationship becomes public, as to whether it should be disclosed to the employer. The policy could warn that a failure to disclose can result in disciplinary action.
  • A policy of relocating employees in relationships to other departments or locations should only be used where it would be objectively justified as a proportionate means of achieving a legitimate aim. It could give rise to claims of discrimination, especially if the junior employee (who is statistically more likely to be female) is the one who is transferred.

When considering introducing a Workplace Relationships policy however, it should be noted that a survey found that two out of five employees do not know if their company has a dating policy or what it consists of. Also, of those employers with dating polices in place, almost half (49%) think these are ignored by staff (source: namely.com). Therefore, alongside the creation of a policy, the focus needs to be on how to bring the policy to the attention of your employees.

Another solution which is increasingly common in the USA are ‘love contracts’, which are used to try and regulate workplace relationships. A love contract is a legal document that employees are asked to sign if they are romantically involved to limit the employer’s liability from any related claims. Although love contracts are not common within the UK due to issues around enforceability, there has been a reported rise recently in their use.

Workplace relationships can be especially problematic for employers where they include a senior and more junior employee. According to a recent survey, whilst the majority of those responding did not have a problem with relationships between colleagues, a third thought that relationships between co-workers at different levels were unacceptable. There is always a danger that such relationships, if widely known, could cause reputational damage to an employer. Increasingly we are being asked to consider whether such relationships can be used to justify the exit of the more senior individual.

Employers should also be aware that #MeToo has also led to calls for reform on sexual harassment in the workplace, including a mandatory legal duty to take steps to prevent sexual harassment, and a statutory code of practice on preventing such harassment with financial penalties where this is breached. There are also calls to ban non-disclosure agreements, as they are perceived as an attempt to silence victims. In the light of this, it is advisable for employers to get ‘ahead of the game’ and ensure that their sexual harassment policies and procedures, and their procedures for workplace relationships and restrictions in settlement agreements around confidentiality stand up to ever-increasing scrutiny.

For further information or if you have any concerns about workplace relationships in your company, please contact us. We can also provide training on diversity, inclusion and prevention of harassment.

This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.