Much ado in the office

Office romances can upset more than the status quo if they turn sour, says Sue Nickson. Sue Nickson is joint head of employment at Hammond Suddards.

Who's doing what to whom, when and why has always been a hot topic of conversation in the queue at the office photocopier or printer. However, a development in the US may now require you to have a lawyer present at such discussions.

The fear that relationships between colleagues will work against office harmony has led to some employers in the US requiring their staff to sign “love contracts” laying down rules that the couple must follow during the course of such relationships and in the event of the flame of love burning out.

Such contracts may require a love-struck duo to pursue what has been titled a “mutually consensual amorous relationship” and to accept responsibility if things go wrong.

A further common provision in such a contract requires the employees to seek counselling (organised by the employer) to deal with any problems which may arise in the relationship.

There are obvious difficulties with this approach in that, in order to sign such a contract in the first place, the employees concerned will either have to admit to the relationship, be “snitched on” by colleagues or, perhaps most worringly of all, be caught in the act.

Although this development may appear bizarre, it is not surprising that employers are becoming increasingly concerned about this issue.

Workplace relationships are subject to even more stresses and strains than relationships outside of the office. When these stresses spill over into the working environment, the work of either or both of the employees involved (and potentially that of their colleagues) can be seriously affected.

Such relationships can lead to resentment from colleagues, believing they are being treated unfairly as a result of that “special relationship”. They are also fertile territory for allegations of sexual discrimination and harassment being brought by a jilted party.

In the UK, employers have (at least up until now) adopted a far less draconian approach to this issue which, in many cases, has involved turning a blind eye to such relationships unless problems become impossible to ignore.

More pro-active employers have formulated formal policies relating to inter-office relationships which are incorporated into the employee's contract of employment.

Clarity in the drafting of such a policy is critical since, if the policy is sufficiently clear, case law suggests that, where such a policy is deliberately flouted by an employee, the employer may be entitled to consider that they no longer have confidence in that employee and may move to fairly dismiss him or her.

To avoid any suggestion that a dismissal in these circumstances is discriminatory, it is also essential that the policy should avoid any presumption that it is the female employee who should automatically suffer as a result of the relationship. Each case should be assessed on its own merits.

The US approach is novel in the sense that whereas policies in the UK tend to focus on dealing with the problem by recourse to either prohibition, transfer or dismissal of employees, the US “love contract” accepts that relationships at work will happen and that they will go wrong sometimes.

Rather than automatically dismissing employees, the US approach focuses on mediation in an attempt to avoid such a final conclusion. However, it can only be presumed that should counselling fail, the US employer is left in much the same situation as the UK employer, namely having to decide whether to transfer or dismiss one or both of the employees involved.

One might be tempted to believe that it is only a matter of time before this idea crosses the pond and becomes part of the UK employment culture. However the ultimate practical problem will still remain and the impact of the “love contract” may be limited other than in cases where a US parent company insists on its UK subsidiary following this approach.

In other cases it is likely that the more traditional blind-eye approach will be seen as the preferred course.