We can once again leave the annual day of love behind us. After February 14th, it is time to replace romance with realism in all its harshness. For where relationships begin, problems sometimes also see the light of day. But can you, as an employer, restrict the 'right to love'? Can you contractually prohibit employees from entering into loving relationships with one another? Or can you forbid your IT specialist from starting a relationship with the director of a competing company? The answer is not simple. That is why we at MKB Juristen explain a few things to you.
The right to love as a fundamental freedom
No, the right to love is not a figment of the imagination. After all, it is a direct consequence of Article 8 of the ECHR, which enforces respect for private, family, and home life. Such a fundamental right plays out not only within the walls of one's own home but also in the park, at the office, and even at the negotiating table. The principle? Romantic relationships reside in the private sphere of the employee. And as an employer, you can do little to object to this, not even contractually.
A contractual prohibition on love is logically impossible. Yet, in practice, that turns out not always to be the only truth…
Possible: protection of sensitive information
Naturally, as an employer, you are allowed to take the necessary steps to protect your sensitive information. For this reason, a confidentiality clause is often included in the employment contract. This ensures confidentiality, both during and after the employment contract.
What does such a clause have to do with love in the workplace? Little. Nevertheless, it can be an interesting instrument if, say, your salesman enters into a relationship with the sales director of a direct competitor. Moreover, you can use it not only for remedial intervention. A case between Ajax and Feyenoord in 1998, among others, proved this. At the time, the sensitivity of the information was used to justify the dismissal of the directors of Ajax and Feyenoord who were in love. The same thing happened in 2010 involving two lawyers from competing firms. In that case, it was demonstrated that the employer's interest justified such a dismissal, despite the right as described in Article 8 of the ECHR.
Even without a confidentiality clause, dismissal can of course be justified, but it naturally helps to underscore the importance of confidentiality in the employment relationship. Moreover, it can be an efficient means of intervention if it is proven that actual damage was caused.
Quitting is not always the best option
Is dismissal always the appropriate response to such romantic relationships? No. Certainly not in the case of affective relationships at work. After all, dismissal should only be a last resort. Sometimes, for example, it suffices to reassign employees or adjust their job duties. This way, you maintain the balance between the fundamental rights of the employee and your own interests as an employer.
Conclusion
As an employer, it is difficult to infringe upon the right to love. Private life is, after all, private. Intervention is only possible if the interests of the company are (seriously) jeopardized—for example, because the romantic relationship clearly impacts the performance of the employee(s) or because the protection of sensitive information is compromised.
Naturally, one must always balance the interests of the various parties with the necessary tact, but it should be clear that employment law can also limit the right to love.
A confidentiality clause is certainly not a foolproof solution here. Nevertheless, it can serve as a useful tool in a broader argument intended to justify the dismissal. Moreover, if the clause is not upheld, it can be converted into substantial damages. Would you like to know what else such a confidentiality clause can be useful for? Then discuss it with one of our legal experts. They will be happy to explain the details to you during a free consultation.
