Relationships and work, not an ideal match!
The high-profile case of where McDonalds fired its British CEO, Steve Easterbrook, after he admitted a relationship at work, shows that some employers are simply taking a zero-tolerance policy. Despite Mr Easterbrook turning around the fortunes of the company and earning a salary of around £16 million, his admitted breach of the policy which prohibits relationships with employees in a junior direct or indirect line management position resulted in the termination of his contract.
In the post #MeToo era, employers need to take more care than ever to ensure that they are protecting themselves and their employees when romantic relationships take place in the workplace.
Is it necessary to go as far as forbidding all relationships?
Arguably no, although where there is a direct line reporting structure, a relationship is unlikely to be a good idea and at the very least such a relationship should be reported to management in a clear and open fashion. Ideally the reporting structure should be changed to avoid any direct line reporting, or if this is not possible, then at least supervision of the working relationship should be carried out.
However, employees have a right to privacy and a private life and attempts to curtail this can infringe on their Human Rights, as well as creating a bad atmosphere.
So employers need to try to protect employees and themselves whilst respecting that what happens outside the working day should be private.
What can employers do?
The best thing an employer could do is to introduce a clear policy, outlining what is and is not acceptable, and what steps should be taken in different circumstances.
Confidentiality, for example, must always be maintained, regardless of the personal relationship status. It is very unwise for any financial, or career progression, decisions to be made solely by anyone in a relationship with the person in question, even if those decisions need to be taken outside the normal reporting structure.
Many people do meet at work, and a relationship which has no impact on the working abilities of either party is something that it would be difficult to prohibit.
Of course, both parties must maintain a professional relationship at work, and an employer would be entitled to discipline an employee who brought their personal life to work, whether that be spending time talking to the partner and not concentrating on work, or whether it be the unpleasant aftermath of a relationship gone wrong.
What happens when they break up?
If two employees who work together do date, and then fall out, and are unable to work together, it may, ultimately, be necessary to dismiss one or both of them, if all other avenues have been exhausted or are unavailable.
If one is chosen, which one will be a matter of judgment and depend on the circumstances of the case. Certainly, if it is one party who is obviously at fault, either behaving badly or perhaps refusing to work with the former partner, then disciplinary action against that employee for their conduct may result in dismissal. Ideally, one or other employee would be moved – either geographically or just withing the office structure.
If this isn’t possible, it can be that one party, despite there being no work-related fault, will need to be dismissed. It’s very unusual for this to happen – most commonly one or other party will take that decision themselves and resign to work elsewhere. Or alternatively, they may work through their differences and the issue resolve itself.
However, where the employer does find itself in the unenviable position of needing to dismiss, they must take care, so it’s wise to get some advice up front, rather than have to pay costly legal fees later on.
Is it easier to simply ban all relationships?
It would likely be difficult to enforce a straightforward ban on all relationships across the board. Employees have the right to a private life, and a relationship between co-workers who have no interaction at all at work is unlikely to be justified.
Taking the McDonalds approach of prohibiting relationships with junior employees would certainly protect against the #MeeToo type of relationship where the more junior employee’s consent is always questionable, given the imbalance in power.
Must be enforced equally
If you as an employer are thinking of going down this route, you must remember that you have to enforce it across the board for it to be upheld. This might have unintended consequences and you would have to consider what to do about existing relationships (assuming there are some).
Once you start to allow some relationships, then the policy becomes watered down and you can’t rely on it without more. It is nearly always sensible to retain a degree of flexibility and discretion wherever you can.
It is generally wise to take the minimum necessary action to protect your interests and keep employees safe, whilst leaving the maximum right to privacy and private life.
Requirement to declare relationships
Making all employees declare any romantic liaisons can be a useful protection. It can allow disciplinary action for failure to inform, which is more straightforward to put into action, and it will protect more vulnerable employees by insisting that all relationships are known to management and can therefore be policed.
It is not without its potential pitfalls however, so always be cautious of how intrusive a policy is. It’s extremely unlikely to be lawful to insist that all and any kind of personal relationship be disclosed regardless of its length or seriousness.
Where there is a direct line reporting relationship, then it may well be acceptable to insist on disclosure by the more senior party, although this must be done with an expectation of privacy and kept private.
To insist that a junior employee make the disclosure is potentially problematic, and it would be very unlikely to be acceptable to discipline for failure to do so – the duty would clearly be on the more senior partner. Where there seems to be a power imbalance in a known relationship, it would be a good idea to have regular, private, chats with the more junior employee, and to keep an eye on working patterns and decisions made.
Confidential secure reporting
Giving that employee a clear channel, with someone they trust, to seek help if the relationship should start to overstep from private to work life would be an excellent way to protect your employees. And of course do bear in mind that harassment protection still exists, even if the person on the receiving end has failed to disclose a relationship – indeed it’s more likely that this sort of relationship would not be disclosed due to the power exerted over the junior person.
What about marriage?
Be aware that married persons are protected as a separate class – so your treatment of married couples and non-married must be the same. Remember also that your treatment of all relationships must be the same – and to treat same-sex relationships in exactly the same way as heterosexual couples.
Produce a policy
A simple policy, outlining what is acceptable and what not, and clear expectations of reporting requirements and who to report to, can save all sorts of issues going forward and make it easier for managers to understand how to deal with this issue in their teams. Training for your managers in basic disciplinary rules and the various discrimination protections is always a good idea.