We have been made aware of an ongoing romantic relationship between two members of staff. We are concerned that this relationship may give rise to issues in the workplace. How do we handle it?

Given the amount of time spent in the workplace and in the company of work colleagues, it is not surprising that workplace romances remain prevalent. Understandably romantic relationships within the workplace, depending on the circumstances, may prove problematic and employers commonly have concerns that the existence of such relationships may give rise to complaints involving bullying, harassment, sexual harassment, discrimination, breach of confidentiality or conflicts of interest. Workplace romances can give rise to a host of employment issues and there is no question that there is significant risk of liability for employers when it comes to relationships within the workplace.

A matter concerning the breakdown of a relationship between a company director and a secretary came before the Workplace Relations Commission (WRC) recently. In Rosemarie Quinlan v Spencer Family Holdings Ltd [ADJ-00032408], a claim for unfair dismissal was issued by Ms Quinlan, the Complainant, in circumstances where, according to her evidence, she unexpectedly received a letter from the Respondent, her employer, which purported to convey a decision to terminate her employment due to the downturn in business due to the impact  of COVID-19. Ms Quinlan had been employed as a secretary for the Respondent from 2010 to November 2020 and was a former partner of a director of the Respondent (referred to as Mr Y in the WRC decision). Counsel for Ms Quinlan argued that the breakdown of the relationship between the Complainant and Mr Y formed a sub plot in the dismissal.

The Respondent did not make an appearance at the WRC hearing. The Respondent had written to the WRC on an earlier date and outlined that the Complainant had not in fact been dismissed but that she had resigned from her employment in December 2019. In subsequent correspondence, the Respondent outlined that the Complainant had been absent from work for 10 months and as other members of staff had covered for her, “It was felt in essence that Rose had quit the job of her own accord“. Furthermore, in this correspondence to the WRC, the Respondent outlined a background of personal difficulties, where the Complainant, who had been in a relationship with Mr Y was party to a formal end of the relationship, with input from the Courts on custody issues.

In her decision, the Adjudication Officer, Ms Patsy Doyle, found that the Complainant had been unfairly dismissed and that the dismissal was both substantially and procedurally unfair. Ms Doyle heavily criticised the Respondent for the “sharp deficit in the duty of care” she would have expected to see in an Employer/Employee relationship. Ms Doyle found that the Respondent fell seriously short of best practice and respect for the Complainant, both as an employee and associated family member when they deconstructed her employment without inviting her participation. The decision provides that “The Act does not permit dismissal inabstentia and the residual and enduring effect here is a sense of abandonment by the Respondent. The complainant had a right to be heard, which was denied.” The Respondent was ordered to pay the Complainant €21,980 (equates with 14 months’ salary) in compensation for her actual and prospective financial loss. Ms Doyle explained in her decision that she arrived at this figure in response to the profound procedural void in the case and the impact of this omission on the Complainant.

Further issues can arise for an employer where an employee raises allegations with respect to unwanted romantic or sexual advances in the workplace. It is irrelevant if an individual did not mean to harass a complainant or if an advance is intended to  be harmless, the act, if unwelcome to the recipient, may amount to harassment or sexual harassment under the provisions of the Employment Equality Act 1998 as amended (EEA).

The Code of Practice on Sexual Harassment and Harassment at Work also provides that the fact that an individual has previously acceded to the behaviour does not stop him/her from deciding that it has become unwelcome.

In a recent case before the Labour Court in The Agricultural Trust and Ms Lynne Brien [ADE/20/32], the Court heard an appeal of three decisions of the WRC regarding claims under the EEA for discrimination on the grounds of gender, sexual orientation and sexual harassment in the course of employment. There was a further claim for victimisation for making a complaint of sexual harassment and a claim for constructive discriminatory dismissal. The Complainant argued that a number of incidents occurred in the workplace that led to a deterioration of her working relationship with another employee “PK” and that she was the subject of sexual harassment by PK and that this led to her resignation from her employment in December 2018.

The Court established that the key issue to be considered is the manner in which the Complainant’s allegation of sexual harassment at the hands of PK was dealt with by the Respondent and whether or not the Respondent could avail itself of the defences provided for Section 14A of the EEA. Under section 14A(2) of the EEA, an employer must be able to establish:

1. That it took such steps as were reasonably practicable to prevent the person from harassing or sexually harassing the victim; and
2. That it took such steps as were reasonably practicable to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if as any such treatment has occurred, to reverse its effects.

In its consideration, the Court found that the Respondent had a comprehensive Dignity at Work policy in place in respect of which all employees, including the Complainant and PK, received training in during their induction. Furthermore the Court was satisfied that the Respondent carried out a comprehensive investigation of the allegations of sexual harassment raised by the Complainant against PK with the result that some, but not all, elements of those allegations were upheld. The Court also found that the Respondent was very much alive to the likely impact on the Complainant of PK’s return to working in a shared office space.

In its decision, the Court found that the Respondent was entitled to rely on the defences provided in section 14A of the EEA and that the Complainant’s appeal regarding her claim of sexual harassment did not succeed. The Complainant’s victimisation and constructive dismissal claims were also deemed to be not well-founded, and failed.

What can employers do to protect themselves when it comes to workplace relationships?

From an employment law perspective, it should be noted that there is no legal obligation on employees to disclose a romantic workplace relationship in Ireland. Privacy considerations would be relevant for any employer who seeks to prohibit romantic relationships between colleagues. Article 8 of the European Convention of Human Rights enshrines the right to respect for private and family life while the Irish Courts have held that the right to privacy is one of the unenumerated rights which flows from Article 40.3 of the Constitution.

In terms of a practical and common-sense approach for employers, it is advisable to ensure that workplace policies and procedures are in place to address issues that may arise on a case-by-case basis. The aforementioned case of The Agricultural Trust and Ms Lynne Brien reiterates the requirement for an employer to have a clear written policy which sets out the procedures that will be followed when allegations of harassment and/or sexual harassment are raised. It is essential that an employer not only has such a policy in place but that proactive steps are taken to ensure that each employee is on notice of the policy, that training in respect of the policy is provided and that the procedures contained within are followed consistently.

When it comes to the breakdown of an office relationship, an employer will need to address any difficulties which may arise as a consequence in a proactive and constructive manner. It may be that a departmental/team transfer or new reporting lines may need to be given careful consideration depending on the circumstances, however an employer will also need to be mindful of any potential issues which may arise therefrom. e.g. asking a female colleague to move roles instead of a male may give rise to a discrimination claim. In certain circumstances, mediation between the parties may be an appropriate and useful tool. An employer may also offer employees access to an Employee Assistance Programme (EAP), which offers support to employees going through challenging times to include the aftermath of a relationship.