Is coupling-up with a colleague legal?

Long before social distancing and home working became the norm thanks to the pandemic, it was generally accepted that the workplace was a hive for blossoming romances, with some statistics indicating that approximately 24 per cent of people have admitted to having a liaison with a colleague at some point in time. 

With so much of our lives spent working closely alongside our co-workers, this is perhaps unsurprising. But whilst it might all seem like harmless fun on the surface, it’s important to understand just how ill-advised a workplace romance actually is. 

Here, we look at the potential consequences that entering into a romantic relationship at work could have not only on the participants’ careers but also on the wider business; asking if there are any ways to protect all those concerned from the possible pitfalls of workmates finding love in the workplace?

Are workplace romances legal?

Firstly, and most importantly, it should be understood that legally speaking, although it might not be ideal, employers can’t prevent colleagues from entering into a consensual relationship with one another. 

Any attempt to curb a budding romance between two individuals would be in breach of the Human Rights Act (HRA) 1998, which protects an individual’s entitlement to privacy. Besides, it is likely that, even if steps were taken to prevent affairs between two people in the workplace, the relationship would continue outside of working hours regardless.

What are the common issues?

Whilst not unlawful, workplace romances can be a bit of an ethical challenge, especially in sectors where people work in close teams, or there is an imbalance in gender or orientation. Smaller businesses will often struggle too because there will be limited HR or legal to assist if things go awry. 

Romantic relations being conducted between colleagues can be hugely distracting, for both those involved but also for close co-workers, which can have an impact on productivity and service quality. It is likely to nurture a culture of rumour and gossipmongering, resulting in time-wasting and even accusations of favouritism.

But there are also numerous more serious issues that can develop out of a workplace romance, including the very real threat of sexual harassment claims, which is exactly why it’s so vital that any buddling relationship be voluntarily declared to employers upfront.

Declarations of this ilk ultimately allow businesses to take steps to mitigate any such issues. Likely steps will be to alter reporting lines, specifically if one half of the couple is instrumental in the management of the other. This is primarily because issues often arise when the line of accountability and responsibility become blurred or indeed compromised by a personal relationship being formed.

Addressing the balance of power

Irrespective of being under direct supervision of your beau or not, if one half of the relationship holds a more senior position, the balance of power will not be even. A site manager who chooses to begin a romantic relationship with a PA, cleaner, receptionist, or anyone in a more junior role, will have the authority to influence the progression of their partner’s career – either for better or for worse.

This is referred to as an imbalance of power. It can affect anything from promotions to performance reviews, time off, pay, or bonuses. It can put someone at a very unfair advantage or real disadvantage, and that is what is crucial here.

Power imbalances are the most common catalyst for workplace harassment claims; something the #MeToo movement has brought to the forefront by highlighting the perceived line between voluntary, consensual relations and harassment at work.

Proving that a workplace relationship that has power imbalances is entirely voluntary can be tricky. For example, could that approving look from a subordinate be misconstrued for affection, when in fact they were simply admiring your work? Can you be 100 per cent confident that your junior is dating you because they have genuine feelings? Or could it just be that they are worried that they will be treated badly, or unfairly if they reject their boss’ advances? Perhaps even, they could be exploiting someone else’s feelings to further their own interests. 

Taking hierarchy out of the equation, if you make clear romantic intentions towards a co-worker and those feelings are not returned, at best it will create an awkward work environment. However, should that person be a direct report or someone of lower seniority, they could simply choose to go along with those advances through fear of what the consequences might be for snubbing you. 

If at any point someone feels pressured into having relations or is singled out or marginalised for their rejection, this could well end up in a sexual harassment claim.

Furthermore, if an employee complains of unwanted sexual advances and then is treated differently as a result (such as being overlooked for a pay rise or even being dismissed), employers could be additionally vulnerable to victimisation claims.

Even if feelings are reciprocated, other colleagues may be judgemental of your relationship, causing tensions to rise at work, and creating a culture of distrust. Will the more junior half of the partnership ever really get any genuine credit for their work, or will every piece of praise, promotion, or pay rise be met with speculation? 

Protecting a business

Employers who turn the other cheek when the boss starts dating their assistant are risking claims of sexual harassment if they fail to have the appropriate HR policies in place. In addition, should an employee be dismissed as a result of their relationship status, there may well even be grounds for unfair dismissal.

Businesses all have a legal duty to make sure that the working environment is safe for all. This means they should be able to highlight, prevent and address instances of sexual harassment as and when they occur. Inertly excusing romances with a power imbalance is a direct violation of that duty of care and may result in huge issues further down the line.

For this purpose, it’s entirely reasonable that HR policies request any employees wishing to enter into a relationship with a colleague, must inform management at the earliest opportunity. These policies may also wish to outline the management’s right to introduce changes to reporting lines in order to remove any likely conflicts of interest, ultimately ensuring that relationships aren’t conducted between bosses and their immediate subordinates. Either way, the guidelines on inter-colleague relationships should be produced alongside additional anti-harassment and bullying policies, covering the process for dealing with any grievance arising from a failed romance, or from someone making repeated, unwelcome advances.

All of these policies should always be well communicated throughout the team so that ignorance cannot be claimed. It is also prudent that guidance be written into staff handbooks or other relevant HR documentation.

It is advisable for a code of conduct to be established to manage anyone seen to be overstepping the mark, whether that’s showing undue favouritism to a partner, or making, unsolicited approaches to another person, either physically, verbally or via phone or email. 

Although employers aren’t able to physically prevent workplace romances, they can create a fair, and respectful working environment, where all parties are properly protected, whatever the future may hold.

Tina Chander is the Head of Employment Law at Midlands law firm, Wright Hassall and deals with contentious and non-contentious employment law issues, acting for small businesses to large national and international corporates. She advises on a variety of employment law matters, including all aspects of employment tribunal proceedings and appeals.

Wright Hassall is a top-ranked regional law firm, providing legal services including: corporate law; commercial law; litigation and dispute resolution; employment law and property law. The firm also advises on contentious probate, business immigration, information governance, professional negligence and private client matters.

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