What happens when a romantic relationship in the workplace turns sour? If the two employees refuse to work together how should this be managed? Chris Bailey-Gibbs and Sophie Smith examine employers' options.
Romances in the workplace are not uncommon, and, generally speaking, do not present any significant problems. However, take this extreme scenario which we recently advised upon:
- Employee 1 befriends employee 2 and they strike up a romantic relationship;
- Employee 2 resumes a relationship with her ex-boyfriend (who does not work at the same company) and subsequently falls pregnant;
- Ex-boyfriend finds out about employee 1 and threatens him if he returns to work; and
- Not only does employee 1 refuse to return, but also so does employee 2.
Another problem in this type of situation is where two employees both say: “so long as the other continues to work here, I will not be coming into work. Thanks very much”.
What do you do?
- Investigate promptly: Invite each employee into an informal meeting in order to ask them about their side of the story. It is important to find out the facts and understand why the employee is refusing to attend work. You must not reach conclusions prematurely and must keep an open mind. Impartiality and consistency in treatment are key. As always, keep a record of all discussions.
- Open dialogue: It may be appropriate to facilitate a private discussion between the two co-workers to clear the air and establish whether there is any common ground. Whether or not you decide to take formal action after your initial investigation, remind the employees of your grievance procedure and make sure this is followed if a formal grievance is lodged.
- Consider disciplinary action (if appropriate): A key question to consider will be whether an employee who is refusing to do any work is “ready willing and able” to perform it. If not, such a refusal could justify dismissal of the employee after a fair procedure has been followed. The reason for dismissal would be conduct or potentially “some other substantial reason” under the Employment Rights Act 1996. An Employment Tribunal will consider the reasonableness of the employer taking disciplinary action against the employee’s refusal and much will depend on the circumstances. Taking employee 1’s refusal, it may well be reasonable for him to refuse to return, for example, upon being threatened by the angry boyfriend at the employer’s front gate. In such circumstances, if a criminal offence is being committed, the employer may need to report this to the police in the exercise of its duty of care to employee 1.
- Variation of contract: The two employees’ contracts may be varied so they work different hours or, for example, so that one is even relocated to another site. This should only be done in accordance with the terms of the employment contract or by agreement of the parties.
Ultimately, employers have the right to expect their employees to do the job they are employed to do. But obtaining a proper understanding of the relationships in the office or factory floor is the best starting point for you to establish whether employees are behaving reasonably and what reasonable behaviour on your part might look like. There is no requirement to provide a resolution to problems in employees’ private lives, but if they refuse to fulfil their contractual obligations, decisions about their employment may be taken.