No legal obligation to disclose workplace romance
Roses are red, violets are blue,
Workplace relationships mean legal issues for you!
For many employees, the workplace is where they spend a significant amount of time so it follows that it may also be the place that they meet their significant other, write Lewis Silkin lawyers Emma Quinn (senior associate) and managing knowledge lawyer Jacqueline Ho (small picture).
Honeymoon period
Unfortunately, the honeymoon period does not extend to an employment relationship and workplace romances can potentially lead to serious HR and legal issues.
Employers commonly have concerns that the existence of such relationships may give rise to complaints involving bullying, harassment, sexual harassment, discrimination, breach of confidentiality or conflicts of interest.
Recent high-profile casualties of workplace relationships include BP chief executive Bernard Looney, Nestle’s Laurent Friexe and, of course, the Coldplay ‘kisscam’ scandal.
These undisclosed workplace relationships generated negative publicity and ultimately damaged stakeholder confidence.
Given the potential high stakes, the natural reaction for an employer is to ban workplace romances.
However, there is no legal obligation on an employee to disclose a workplace relationship and an employee’s right of privacy is safeguarded under the Irish Constitution, data protection legislation and common law.
Unjustified interference
Accordingly, a blanket ban on in office relationships may be seen as an unjustified interference with such rights.
Notwithstanding this, there are measures that employers can take to balance an employee’s private life against workplace risks.
Some workplaces have introduced non-fraternisation policies which require employees to disclose relationships to HR in specific circumstances, for instance if the relationship is with a colleague who is junior or senior to them, and for whom they have some form of decision-making authority.
Relationship status log
However, the evolving nature of modern relationships and ‘situationships’ can make drafting such policies more complex – for example:
- How is the threshold set for disclosure of a relationship to HR?
- If a relationship is disclosed, must a worker further disclose if that relationship breaks down?
- Does HR have to keep a log of relationship status in the company?
- Is relationship data protected by GDPR?
Employers may want to consider a broader approach by introducing a code of ethics or code of conduct, with an emphasis that all employees should behave in a professional manner while at work and treat all colleagues with dignity and respect.
A code can also provide guidance on relationships and potential conflicts of interests by setting out specific examples of the types of relationships which could lead to actual or perceived conflicts of interests and require that employees disclose those relationships.
It is worth noting that conflicts of interests are not limited to romantic relationships and other close relationships, such as family members working for a supply chain vendor could also lead to potential conflicts.
Non-fraternisation’ policy
Utilising a broader code rather than a targeted ‘non-fraternisation’ policy can capture these non-romantic relationships and require disclosure.
In all cases, employers should ensure that employees’ personal life and privacy are respected and any disclosure requirement should be limited to notifying HR on a confidential basis only if a relationship has the potential to create an actual or perceived conflict of interest, or where there is a reporting line between the couple.
Similarly, the breakdown of a relationship between colleagues may also turn a personal heartache into an employer’s headache.
In such cases, it is important for employers to take a measured approach and avoid any kneejerk reactions.
Employers may need to consider whether new reporting lines or a departmental transfer may be appropriate, in the event of a relationship breakdown.
Discrimination risks
Employers should ensure that any workplace issues or grievances that arise are dealt with promptly and be careful to avoid any potential discrimination risks (for instance, asking a female colleague to move roles instead of the male colleague).
If there are acrimonious circumstances at work, employers should consider whether mediation is appropriate and offer employees access to the employee assistance programme, if available.
A cautionary tale can be found from the WRC case of Quinlan v Spencer Family Holdings ADJ-00032408.
The claimant was a secretary for the respondent, and she was also previously in a relationship with one of the company directors (the son of a senior director).
The claimant stated that, following the breakdown of her relationship with the director in June 2019, she was told by both the senior director in the firm and her former partner to "go home".
She was subsequently dismissed allegedly due to downturn in the business without any dismissal or redundancy processes being followed.
The claimant’s representative attributed the dismissal to the breakdown of the relationship and argued that his client’s dismissal "did not reflect a work-based event".
The adjudication officer found that the respondent "fell seriously short of best practice and respect for the complainant both as an employee and [an] associated family member" and awarded the claimant €22,000 in compensation for unfair dismissal.
Standard of professionalism
A prudent employer should:
- Introduce a code of conduct or other policy that sets out a minimum standard of professionalism expected in the workplace,
- Ensure that all employees understand the importance of avoiding actual or potential conflicts of interests in relation to personal relationships (whether romantic or otherwise),
- Take a balanced approach to workplace relationships and respect an employee’s right to privacy,
- Where issues arise, avoid taking sides and utilise existing workplace resolution procedures such as dignity at work, grievance to resolve matters.