Holding a love rat to account

Dear Auntie

I am the HR Partner of a small firm of accountants.  I have just found out that one of the partners (who by the way is married) is having an affair with one of the secretaries.  I’ve also noticed that according to his diary (which the entire firm has access to) that they had dinner together on Valentines’ Day!

I am concerned about the implications of this relationship, should it become public knowledge in the office.  How should I best approach this?

Yours

Beatrice Busybody

Dear Beatrice,

I can understand your concerns, as a recent case highlights the problems workplace relationships can cause.   In B v A, a solicitor in a small practice dismissed his secretary with whom he had been having a sexual relationship. He had become jealous when he discovered she was also having an affair with a man from her university.  Whilst the sex discrimination claim did not succeed, because the reason for dismissal was "jealousy" and that was "inconsistent with the reason being her sex”, the firm of solicitors was still found liable for having dismissed the secretary, unfairly.  The facts of this case clearly demonstrates the legal risks associated with workplace relationships.

Recent surveys also show that there has been an increase in the number of workplace romances, which can have legal and financial implications for employers.  In order to counter this, there has been a large rise in employers using “relationships at work” policies in an attempt to restrict and/or regulate the consequences of intimate or close relationships between employees. Such policies, known as “love contracts” are fairly common in the United States.  They usually prohibit relationships between colleagues and oblige those breaching the terms of the policy to inform the employer.  They usually spell out what will happen if the relationship poses a threat to the business.

You may think this is the answer to your romantically inclined colleagues, but UK employers must exercise caution, should they decide to implement such policies, as there are potential risks in terms of discrimination and breaches of human rights including the rights to privacy and to family life. Unless an employee works for a public body, he/she would not be able to bring a claim for breach of human rights directly against his/her employer. All courts and tribunals (as public bodies) are however obliged to take the provisions of the Human Rights Act into account when considering cases, so if an employer were to bring a claim for unfair dismissal, discrimination or breach of contract following the implementation of such a policy, he/she could argue a breach of human rights "piggy backed" on his/her other claims.

A distinction can however be drawn between objecting to your two colleagues getting together i.e. the romance itself (which is essentially a private matter) and objecting to consequential business risks. One of the big risks in this situation is that if and when the relationship goes sour the working environment may become intolerable, leading to resignations or allegations of impropriety etc. In a worst case scenario, after the romance has fizzled out, one or other of the employees could allege harassment or state that they were being persecuted as a result of the break-up.  You are also correct to be concerned about the implications of the relationship becoming public knowledge.  These sorts of situations can invite allegations of favouritism (whether real or perceived).

However, before you take any action, I suggest that you carefully consider what risks this relationship actually poses to the firm weighed up against the individual’s right to privacy.  Any decisions made in how to deal with this should be documented.  You should also discuss the matter with them both and explain the nature of your concerns and give them the opportunity to make representations.  Whilst this issue is not a usual type of disciplinary matter, it is likely to fall within the statutory disciplinary procedures, so you need to ensure that you comply with the three step process. 

Despite your personal feelings about the relationship, ensure that you do not give the appearance of making any moral judgments on the relationship, as this will just alienate those concerned and could breed resentment.  This matter should be dealt with sensitively and discreetly in order to minimise any adverse implications.  Don’t forget also to retain some sort of detachment and sense of humour about the whole situation, as you could be in store for more mayhem post Valentines’ Day.

Good luck!

Auntie