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Risk Management for the Remote Office Romance and Beyond

During a period where people have experienced multiple lockdowns, separated from their friends and families, the one constant for some has been work, often working remotely from their own homes. In a time where, despite the isolation, many employees may grow closer to their colleagues, employers will be considering the ramifications of workplace romances and questioning what action, if any, they need to take. In this alert, Senior Consultant Elizabeth McEneny discusses the potential risks for employers, and their legal standing to put in place a framework for how office relationships should be managed.

In late 2019, the global asset management firm BlackRock terminated the employment of one of their most senior executives, widely tipped as a possible successor for CEO, for failing to disclose a consensual relationship with a colleague. Whilst workplace policies requiring employees to disclose relationships with their subordinates, or those within their management team, are becoming increasingly commonplace, BlackRock’s longstanding policy has required staff to disclose any relationship with a colleague in the Firm.

Mandating employees to disclose relationships is not a new concept and has been particularly favoured by large corporations, especially in the USA, with many prominent senior executives being affected in recent times; the CEO of McDonald’s was terminated after falling foul of company policy requiring the disclosure of an inter-office relationship, and the CEO of Intel resigned after an investigation found he had violated the company’s policy on non-fraternisation.

Increasingly stringent policies on workplace relationships are, in large part, designed to dissuade employees from entering into a relationship with their colleagues at all. Given the spotlight which #MeToo has shone on issues of sexual harassment and sex discrimination, it is unsurprising that employers are keen to avoid situations which have even the potential to raise allegations of impropriety, bullying or victimisation.

A claim of victimisation may arise where an employee who has been subject to sexual harassment in the workplace raises a complaint about that treatment, and is subsequently subjected to a detriment because they raised the issue. Under the Equality Act 2010, employers can be vicariously liable for acts of discrimination, harassment and victimisation carried out by their employees in the course of employment, irrespective of whether they sanctioned, or even were aware of, their employees’ actions.

The associated reputational damage that can come with any legal proceedings should also not be underestimated, particularly in light of #MeToo.

Aside from litigation risks, if a relationship ends acrimoniously, it may become untenable for both individuals to remain working within a small organisation or close-knit department, requiring additional management time and oversight to resolve issues, which frequently result in the exit, voluntarily or otherwise, of one of the parties to the relationship.

As the Covid pandemic overnight made home working the new default for many employees, some commentators speculated that this shift in working behaviours may herald the end of the workplace romance. On the contrary, however, in a time where the boundaries between work life and personal life have become increasingly blurred, studies have shown that workplace romances are on the increase. This is perhaps not surprising, following difficult and protracted periods of lockdown during which the boundaries between work and home life blurred and some employees spent more time than ever – albeit virtual – with their colleagues, with limited opportunity to meet people outside the workplace.

The most obvious risk for employers in managing workplace romances remotely is the inability for the employer to overhear or see new patterns of behaviour, which may trigger additional vigilance and enquiry from the employer about a possible workplace romance, or possible unwanted advances.  It is much simpler to monitor such a situation sensitively and discreetly in a physical workplace. Remotely, many of the physical cues we are used to relying on, even unconsciously, cannot be seen. Video calls usually only show the head of an individual; therefore, common tell-tale signs of distress or discomfort are simply not visible – as wringing hands and shaking legs are off screen.

During the pandemic, employers have had to turn their minds towards issues of locked down employees conducting personal relationships with colleagues via new means of communication, including Teams and Zoom. Most employers retain the right and ability to monitor communications conducted via email and company-provided devices such as smartphones; however, interactions via video meetings can be conducted more covertly. Currently, whilst the main platforms offer the ability to record these interactions, it will need to be specifically enabled by one of the participants. Of course, that also carries the risk that one of the participants could unwittingly or purposely record the interaction, without the knowledge of the other, opening up the possibility of data breaches and privacy concerns.

Previously, when a workplace romance ended, and management became aware of this, the situation could be carefully observed to ensure that one person is not unfairly retaliated against or victimised as a result. However, if this victimisation occurs not in the presence of witnesses, for example over Zoom rather than email or other more ‘traditional’ methods of inter-office communication, the ability for an employer to oversee events becomes significantly curtailed.

It is increasingly vital that employers have adequate, up-to-date policies in place which address the realities of workplace relationships in a new, remote working world. Employers also need to ensure that any relationship policy is properly communicated and that regular and robust training on the potential risks of workplace relationships is provided. Training should include ensuring employees understand particular risks arising where there is a power imbalance as well as giving practical examples of what constitutes sexual harassment and victimisation.

Towards the end of 2020, BlackRock updated its already stringent relationship policy to make it one of the broadest relationship disclosure policies we have seen, now requiring their staff to disclose relationships with “external partners” with a connection to the firm, including employees of vendors who work with BlackRock, and employees of clients of BlackRock. It will be interesting to see how they fare with such an expansive policy in place, which could prove difficult to enforce.

Indeed, employers should be mindful that a policy on relationships in the workplace needs to be finely balanced and must not lose sight of the fact that employees have the right to a private life, a right which is enshrined in Article 8 of the Human Rights Act 1998.

When BlackRock’s updated policy was published, many commentators took the view that the firm had gone too far. Quite aside from the scepticism as to how realistic and practical it would be for a BlackRock employee to immediately be aware of whether their new partner happened to fall within a ‘restricted’ category, there was concern regarding the increasing willingness of employers to mandate on what was previously considered a part of an employee’s personal life. One could speculate as to when the obligation to disclose a ‘relationship’ actually occurs; could it be that the employer will be the first to become aware of their employee’s new partner, long before the person may feel comfortable or willing to share that information with their own family and friends? And how will any policy be enforced in practice to minimise the risk of discrimination or other employment claims?

As remote working, or a hybrid working model, becomes a long term reality for many employees, employers should ensure they have a contemporary and compliant policy which clearly sets out the firm’s expectations and does not intrude on the employee’s right to a private life. A policy which is seen to limit this right may be taken into account by employment tribunals in assessing any claims arising from these issues. In the UK, therefore, it is unlikely that a policy which placed a blanket ban on any workplace relationships would be practicable or enforceable. Nonetheless, there are lawful and reasonable measures which a company can incorporate into an appropriately drafted policy, which balances the employer’s right to take reasonable steps to minimise the risk of unlawful acts in the workplace, and avoid conflicts of interest, against the employee’s right to a private life.

Employers must also be careful when collating and storing data regarding workplace relationships, which is personal data, and which must be maintained securely. With virtual working models likely to be a long term feature of the work landscape, in some form, it would be prudent for employers to take this opportunity to ensure they are on the front foot in addressing these risks.

If you are an employer and would like to discuss tailored policies and procedures for your workplace, you have any other questions arising from this alert, or for specific legal advice on particular circumstances, please contact our Senior Consultant Elizabeth McEneny, specialist in contentious and non-contentious employment and partnership issues for multinational employers, senior executives, partnerships and partners.