Office romance: Am I liable?

Workplace relationships can pose a number of difficulties for employers, both from a legal and non-legal perspective. From a legal perspective, workplace relationships are often frowned upon since they can give rise to a number of potential claims for which an employer can be held vicariously liable (discussed in more detail below).

From a non-legal perspective, there is a risk, particularly where a senior employee is having a relationship with a more junior employee, of allegations of favouritism and abuse of power, whether accurate or not. Further, there is an increased risk of confidential information being disclosed which can cause an employer significant embarrassment. Earlier this year, for example, Lord Triesman, the married Labour peer and Football Association chairman tasked with helping England secure the 2018 World Cup, resigned from his post once it became common knowledge that he had allegedly made disparaging comments about the Spanish and Russian Football Associations to a junior civil servant with whom he was allegedly having an affair.

The William Hague story highlights that two employees do not even need to be in a relationship for employment issues to arise.

Possible legal claims:

1. Breach of contract: Under English law, there is an implied term that both employers and employees shall treat each other with respect.  This is known as the mutual term of trust and confidence. Where there is an alleged relationship between two employees, an employer must ensure that the matter is dealt with sensitively and in a confidential fashion. Otherwise, an aggrieved employee could resign and claim constructive dismissal, seeking his or her notice pay in addition to pursuing a claim for unfair dismissal (see point two).

2. Unfair dismissal: Subject to the employee having the requisite length of service (at least 51 weeks), they could pursue a claim for unfair dismissal if they are let go due to allegations of having an affair with another employee. They can also claim unfair dismissal if they have to resign due to the treatment they receive from their employer (or by another employee or a third party for whom the employer is vicariously liable) in light of the allegations. Even if two employees are having a relationship, an employer would need to think carefully whether it would be reasonable to relocate or dismiss one or both of the employees.

3. Discrimination: The current Employment Equality (Sexual Orientation) Regulations 2003 prohibit discrimination and harassment on the grounds of sexual orientation (which includes an individual’s perceived sexual orientation as well as their actual orientation). In the English v Thomas Sanderson Limited 2008 case, the Court of Appeal held, by a majority, that “homophobic banter” directed at an employee could be harassment, even where the victim was not gay and his tormentor did not believe him to be gay.

Given the press headlines generated by the Christopher Myers case, employers would do well to deal with such rumours in a delicate manner, bearing in mind their employees’ legal rights as well as the potential financial and reputational implications. Want more about this topic- Unfair treatment

Fudia Smartt of Russell-Cooke LLP. She can be contacted at Fudia.Smartt@russell-cooke.co.uk

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