Friday 19 January 2018

The language of love – why bosses are insisting on romantic contracts

With anything from one-third to half of all romances now starting in the workplace, the old adage "never mix business with pleasure" springs to mind.

Clearly office romances are part and parcel of working life but they can cause a whole range of issues.

Depending on the circumstances, employers may have concerns that the relationship could lead to claims of sexual harassment, discrimination or favouritism. That's why employers are increasingly including 'Love Contracts' in terms of employment.

In addition, the relationship could lead to improper dissemination of confidential information between employees. Acrimonious break-ups or personal problems could also lead to conflict, revenge-motivated complaints or to a harassment/sexual harassment claim.

The seemingly innocent Valentine's Day card or unwanted flowers before a relationship has even begun might also cause difficulties. Whilst such behaviour may be regarded by the recipient as no more than a harmless advance, employers should be aware that if the "act, request or conduct" is unwelcome to the recipient and is regarded as "offensive, humiliating or intimidating" to that person, it may constitute harassment.

The scope of employers' potential liability is vast and employers can be liable for anything done by their employees in the course of their employment, regardless of whether their actions were undertaken with the employers' knowledge or approval. Some situations will be automatically considered to be an extension of employment – for example an office party or a colleague's leaving drinks.

An aggrieved employee (or former employee) may bring a claim of discrimination/ harassment on the grounds of gender to the Circuit Court, which has unlimited jurisdiction in terms of the award of compensation.

There is also the prospect of multiple claims to the Equality Tribunal with awards of compensation of up to four years' salary being made. The Equality Tribunal and Irish courts have not been shy about making large awards.

In addition to the financial implications, there is the prospect of serious damage to the employer's business and reputation.

It is a defence for an employer to a harassment claim if it can demonstrate that it took such steps as were reasonably practicable to prevent the harassment.

In an effort to minimise their exposure to liability, employers could seek to impose a ban on romantic relationships amongst their employees. This may, however, be considered to be in breach of the European Convention of Human Rights, which provides that persons are entitled to a right to respect for their private and family life. Also, on a practical note, a rule that prohibits romances between co-workers may be deemed to be invasive, inappropriate and unnecessary.

"Consensual relationship agreements" or "love contracts", which require that employees agree, in their contract of employment, to disclose to their employer romantic relationships with work colleagues, is a concept developed in the US.

Under such agreements, employees are required to confirm to their employer that the relationship is consensual (in an attempt to prevent a claim of harassment). However, present and future employees may be reluctant to sign up. In addition, privacy considerations under the European Convention of Human Rights would be relevant.

A more realistic and practical approach may be to ensure that existing policies and procedures can address problems as they arise on a case-by-case basis.

A vital aspect of dealing with allegations of harassment is the existence of a clear written policy which sets out the procedures that will be followed when allegations of harassment/sexual harassment are made. However, it is not enough merely to have such a policy. It is imperative that employers ensure that all of their employees are aware of the policy.

Employers need to address any difficulties that arise in a proactive and constructive manner. A failure to do so can result in complex, costly and protracted litigation that is often embarrassing and damaging.

Aoife Bradley is a partner in LK Shields' employment, pensions & employee benefits team

Irish Independent

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