Is romance in the air in your office?

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Question

I  am  a  partner  in  a  medium-sized  firm  of  accountants.  I have been very focused on my work for many years, spending long hours at the office. Without wishing to be smug, I am pleased with how my commitment to the firm has paid off. However, I now find I can’t help being distracted by my rather attractive trainee. At weekends, I am looking more and more forward to Mondays so I can see her again. I am pleased to say that I am confident that my feelings are reciprocated but before I ask her out, I know I should remind myself of the legal issues of a workplace romance.  The trouble is, I am so in love, I can’t see the wood from the trees.  Surely, there isn’t any risk in adding a bit of excitement to my work life. Or is there?

Answer

These days, many of us are at work almost as much as we are at home so it is easy to see why you might be tempted to start an office romance with someone you spend so much time with – someone whom you have already got to know well on a day-to-day basis and who understands the pressures of your job. It can be exciting “pretending” to your colleagues that you are not dating and it could mean that you are able to work well together. However, there are also a lot of ‘cons’ to workplace relationships:

  1. Workplace relationships rarely stay between two people. Once a rumour starts circulating, it becomes everybody’s business and your love life becomes the subject of gossip. You may not want your relationship to be the subject of constant scrutiny.
  1. The relationship may end up hampering your job performance and that of your trainee in that it can distract you from your work – you may be tempted to have longer lunch hours together or to sneak off early. That can, in turn, cause jealousy among your colleagues. Also, even if you remain on track, your trainee may think she no longer has to work as hard and can take liberties. Normally, you would address the situation but, now you might find your hands are tied.
  1. The relationship may cause friction in the office by raising suspicions of unfair treatment. For example, in one case, Wilton v Timothy James Consulting Ltd, a CEO was in a relationship with D, one of the company’s consultants, who was managed by a Ms Wilton. The CEO continually undermined Ms Wilton’s authority over D by, for example, directly authorising time-off requests for D without consulting W, even if the request had previously been refused by Ms Wilton.  It became the view of Ms Wilton’s team that D was given preferential treatment because of her relationship with the CEO.Ms Wilton felt humiliated because the CEO was undermining her authority over D and she eventually resigned and brought a successful claim for constructive unfair dismissal in the employment tribunal.
  1. Even if your trainee agrees to the relationship, she may be so flattered by your attentions, she omits to tell you she is already in a committed relationship. It is no fun when that person finds out and makes threatening phone calls to you or turns up at the office screaming blue murder.
  1. If your trainee ends the relationship, there could be such personal friction that you end up retaliating by dismissing your trainee. This could give rise to a sex discrimination claim. The question the tribunals would need to ask themselves is what was the reason why the employer took the action in question. In one case, B v A, B, a solicitor in a small firm, dismissed his assistant, A, with whom he was in a personal relationship when he discovered her infidelity. The tribunal found that A would not have been dismissed ‘but for the fact she was a woman’ and therefore upheld her claim of sex discrimination. However, the Employment Appeal Tribunal held that A had been dismissed because of the breakdown in her relationship with B, not because of her sex.  The appropriate comparison was with a gay male employer and a gay male employee.  Such an employee would have received exactly the same treatment, that is the jealous employer would have dismissed the gay employee upon discovering his infidelity. However, compare this to the case of Mawdsley v Academyline Corporate Ltd.  Ms Mawdsley was dismissed by S, the managing director of a chauffeur business purportedly on the grounds of dishonesty. However, an employment tribunal found that Ms Mawdsley had been dismissed because, having initially had sexual relations with S, she had told him she wanted to end the relationship. As a result, S’s attitude towards her changed.  He called her a ‘tart’ and criticised her if he did not think that she was performing her duties quickly enough.  The tribunal held S’s conduct constituted harassment related to sex and Ms Mawdsley’s subsequent dismissal was an act of sex discrimination.  It is difficult to reconcile these two cases.  If the tribunal in Mawdsley had taken the same approach as in B v A it would have had to ask whether a man with whom the managing director had had a homosexual relationship would have been treated any differently and the answer would surely be ‘no’.
  1. The most common cause of action pursued in relation to conduct associated with workplace relationships is harassment. The general definition of harassment in the Equality Act 2010 provides that a person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic (such as sex), and the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. You should note that harassment covers a situation where the conduct does not take place because the employee has the protected characteristic but it is nevertheless related to the protected characteristic. So, for example, if your relationship with your trainee breaks down because you think she is having a relationship with someone else and you continually make offensive remarks to her about this, your conduct is not because of her sex but because you suspect she is having a relationship, which is related to her sex.  You should also be aware that the definition of harassment covers unwanted conduct which has either the ‘purpose’ (intentional) or ‘effect’ (unintentional) of violating your trainee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment provided that, in the latter case, a tribunal considers it is reasonable for the conduct to have that effect as well as it being her own perception.

As well as the general definition of harassment, there is an additional definition in the Equality Act which deals specifically with sexual (as distinct from sex-related) harassment. Although this definition overlaps to a large extent with the general definition, conduct of a sexual nature can cover such things as unwelcome sexual advances, touching or forms of sexual assault. In the context of an existing relationship, a tribunal may be required to consider the point at which the conduct between the parties goes from consensual to unwanted.  In A v Chief Constable of West Midlands Police A complained that she had been subjected to sexual harassment by B, her supervisor for eighteen months. However, the employment tribunal found that the relationship had been consensual for the most part and only turned sour at the very end, with sexual harassment occurring over two days only when B had pestered A because he intended to abandon his girlfriend and sought to propose marriage to A, making constant attempts to contact, persuade and plead with her.

  1. You should check whether your firm has a dating/relationships policy that outlines what is, and what is not, acceptable when it comes to relationships at work. These policies are not common but can be useful to maintain reasonable boundaries between professional and personal life rather than to interfere unduly in relationships between consenting adults.
  1. Conclusion – In a survey conducted in February 2015 by careers website,co.uk, 48% of those interviewed admitted that they had dated a colleague with over a quarter saying this had turned into a long-term relationship or marriage. However, where, as in this case, the relationship is between colleagues of different seniority, you should ensure that you weigh up the pros and cons before jumping right in.  If, you still want to start the relationship, ask yourself whether,  in your heart of hearts, you believe this is more than mere infatuation and that you are certain, without any harassment, that your feelings are returned.   If this is the case, you should disclose your position to your partners, who may wish  to define the responsibilities and behavioural guidelines of both you and your trainee when you are at work.
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OGR Stock Denton
Posted in Employment Law Update.