With rose tinted glasses on it may seem that a work place romance is full of ahhhhs and ohhhhhs but what really is the cost to retailers? It is an unfortunate fact that despite the romantic glow, relationships in a retail environment, whether they flourish or fail, can have a negative impact for employers. When the relationship is going well an employer may endure allegations of favouritism from other employees, a slump in production from the starry eyed lovers and confidentiality may become compromised. However, when the relationship turns sour, at best the working environment between the former lovers may become hostile and difficult, but at worst and more seriously, retail businesses may find themselves on the receiving end of a claim for sexual harassment!
To ban or not to ban?
Whilst a complete ban on relationships in a retail environment may be desirable, this is unlikely to work in practice. A ban on relationships will only lead to relationships being carried out in secret and it is difficult to see how an employer can enforce the ban fairly.
What can retailers do?
One option is to ask employees to sign a "love contract". A love contract is a concept that was born in the US and has slowly crossed the Atlantic. A love contract works on the basis that there is an obligation on employees to notify their employer if they form a relationship at work with a colleague. Once the declaration is made, the employees are asked to sign an agreement to confirm that their relationship is consensual and that neither will bring a claim for sexual harassment against the other if the relationship ends. Whilst a love contract may sound like it ticks all the boxes, it is unlikely to prevent a claim for sexual harassment from being brought as it is not possible to contract out of the Equality Act 2010 in the UK. A love contract may however help an employer to defend a claim.
From a practical perspective there are some steps which an employer can take to make the course of true love run smoother and to minimise the damage when the brakes are applied. Depending on the nature of the business, an employer may be able to transfer one of the employees to another department or branch. For multi-site retailers this is perhaps an option although much depends on the geographical spread of the business. It would be helpful in this situation if there is a contractual right to transfer the employees. In the absence of a contractual right to transfer an employee it would be best to seek the employee's agreement rather than impose a transfer. Even if there is a contractual right, this right must be exercised fairly and reasonably. Which employee will you transfer? This is a question that must also be considered objectively. If an employer, as a matter of practice, always transfers the junior employee then this could lead to a claim for indirect sex discrimination and/or age discrimination if a larger proportion of the junior staff is female or of a particular age group.
A retailer could introduce a policy on workplace relationships which applies equally to all staff and sets out clear guidelines as to the standards expected at work. This policy could equally apply to close personal or family relationships. As there is the potential for sexual harassment allegations to be made after a relationship ends, the policy should cover appropriate sanctions and guidelines for harassment arising out of the breakdown of the relationship. It may be that an employee makes an allegation of harassment as a form of revenge or may continue to pursue their former lover who then complains of harassment. It is important to note that if allegations of harassment are made by an employee after a relationship ends then an employer could be liable for this harassment, unless it can show that it took reasonable steps to prevent the harassment.
Another policy worth looking at is the email communications policy. Does the policy sufficiently cover the type of emails that employees in a relationship may be tempted to send to each other? If an employer finds that they are dealing with inappropriate communications then this likely to be a disciplinary issue.
Whilst at first glance it may seem that relationships at work may be all rosy, the above highlights that there is the potential for an employer to become an unwilling party to the relationship. We suggest that it would be prudent for employers to review their existing procedures and implement safeguards to ensure that they are sufficiently protected.
The contents of this brochure are intended as guidelines for clients and other readers. It is not a substitute for considered advice on specific issues. Consequently, we cannot accept any responsibility for this information or for any errors or omissions.
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