Dating in the workplace: What does the law say?

McDonald's has been in the news over the last week because of the controversial actions of then CEO, Steve Easterbrook, who was fired from the company for violating its company policy on workplace relationships. McDonald's said that the relationship was consensual but that Mr Easterbrook had “violated company policy” and shown “poor judgement”. In an email sent to staff, Mr Easterbrook acknowledged the relationship and said it was a mistake.

The news caused a frenzy all over the world with people debating whether it is right for employers to have this level of control over their employees when it comes to their personal life and relationships. These views are more likely to be different depending on the part of the world employees work in. McDonald's has different workplace policies on dating in the workplace depending on which country its employees are based in.

Mr Easterbrook was based in the US and was subject to the US policy which has a blanket ban on workplace relationships and states that “employees who have a direct or indirect reporting relationship to each other are prohibited from dating or having a sexual relationship.” Interestingly, the corresponding UK policy has the same wording but also provides an exception to the rule which states that “unless it is clear that such relationship poses no conflict and provided that the relationship has been disclosed to, and approved by senior management and HR.” Both policies go on to further state that “if you are either in a relationship or plan to enter into a relationship that may violate company policy, you must advise your HR rep or Director immediately.”

This leads us on to the big question as to why McDonald's have taken a more lenient approach to workplace relationships in the UK than in the US?

It is also worth considering what steps employers can take to ensure consistency in their approach?

As our employment law specialist, Eleanor Mannion touched upon in her recent interview with STV (https://player.stv.tv/summary/scotland-tonight), in the UK individuals have additional legal protections afforded to them in the way of human rights legislation, particularly Article 8 of the European Convention of Human Rights (ECHR) as applied by the Human Rights Act 1998 which incorporates human rights set out under the ECHR. While this right is not absolute, it and other such ECHR rights will be taken into account by the Courts and Employment Tribunals as they should interpret the law in ways which are compatible with ECHR rights. Individuals therefore have the right to respect for private and family life. They have the right to live their life privately without interference from public authorities and this includes private romantic relationships. As a qualified right, there are exceptions, for example, if the interference can be shown to be justified and in accordance with the law. This may be one reason why, in the UK, bans on workplace relationships are not as prevalent as they are in the US, as many people may view this as interference by their employer and be less likely to agree to those terms of employment. Such policies are not legislation so are therefore voluntary. However, given that the balance of power usually lies with the employer in respect of negotiating any terms relating to employment contracts and applicable policies, then it will be hard for an employee to refuse to follow a policy like these. This is a point worth making as employers draft the policies and employees have no final say over what it contains.

The argument for employers is that they are simply trying to protect their business and any potential conflicts or issues that may arise if a workplace relationship were to break down; or was not welcome. This remains a very real risk for employers. One way of ensuring consistency for employees would be having clear policies setting out what is expected of those employees, particularly those who have a responsibility; or can influence for others who may wish to engage in workplace relationships. Similar to McDonald's in the UK, and employer could expressly set out that a workplace relationships or plans to enter into one be disclosed to management or HR.

Once any potential risks are identified then this would allow companies to take steps to protect their business. For example, if the parties to the relationship are directly reporting to each other then employers may wish to alter their reporting line in order to ensure fairness and minimise the risk of a fall out if the relationship does then break down. It may also be useful providing updates and training to employees in respect of what is expected of them in the workplace and how their personal life can impact on their work.

There may be other risks facing employers of potential claims by employees affected by a breakdown of a workplace relationship. If the breakdown was volatile or the working relationship deteriorates, there may be a significant risk of one of the employees feeling harassed by their former partner. This could result in a harassment claim being made by the affected employee under Section 26 of the Equality Act 2010. An employer is vicariously liable for the acts of its employees if the conduct was carried out in the course of their employment. The extent of the liability on an employer can be extensive and far reaching. The employer may, however, be able to defend a claim on the basis that it took all “reasonable steps” to prevent the worker from acting unlawfully. An example of a reasonable step that an employer could take would be to ensure it has a clear Equality Policy and providing regular updates; telling them what behaviour is and is not acceptable at work; training to employees and maintaining records of the training that has been provided to employees.

If you would like any further information in relation to this, our Employment team would be happy to assist and provide further assistance in respect of drafting workplace relationship policies for your company.

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