For decades, employers have sought to regulate workplace romances through “love contracts”—agreements that require employees to disclose romantic relationships and abide by specific conduct rules. These contracts aim to mitigate risks such as conflicts of interest, favouritism, and harassment claims.
However, a recent landmark ruling by Kenya’s Employment and Labour Relations Court has thrown a spanner in the works, challenging the very foundation of such policies.
The court affirmed that romantic relationships between employees are lawful and fall under the constitutional right to privacy, effectively prohibiting employers from penalising consensual workplace relationships.
This decision has sparked a heated debate: Are love contracts outdated, or do they still have a place in modern workplaces?
The ruling: A game-changer for workplace romance
The court’s ruling stemmed from the case of Mark Ngugi Mwaura v. G4S Kenya. Mwaura was dismissed by the private security company after a colleague, Anne Mukami, accused him of sexual harassment, claiming he fathered her child and refused to provide support.
However, a DNA test later proved Mwaura was not the child’s father. Despite this, G4S terminated his employment based on the harassment allegations.
Justice James Rika ruled that while there was evidence of a relationship between Mwaura and Mukami, there was no proof it constituted sexual harassment.
He emphasised that employees have a right to pursue romantic relationships at work, as this falls under the constitutional right to privacy. Subsequently, the court declared Mwaura’s dismissal unfair, awarding him Sh3.2 million in compensation and ordering G4S to issue him a certificate of service.
This decision has significant implications for employers who enforce love contracts or penalise workplace relationships. It raises questions about the balance between protecting employees’ privacy and maintaining workplace professionalism.
Mixed reactions: A divided perspective
The ruling was met with both applause and criticism.
Ntwiga John, a commentator, praised the decision, stating, “Justice James Rika has saved many (employees) with this ruling. Truth be told, there are many enchanting stories of love brewed in boardrooms, corner offices, and staff rooms. Most of us have had a dalliance with wild romance in our workplaces, and we were chastised for it by our bosses—some even got fired.”
However, others expressed concerns about potential abuses.
Murithi June noted, “In this country where power dynamics are so unbalanced, there are too many loopholes for abuse.”
Arabella Gracey added, “Sexual harassment has entered the chat,” highlighting the fine line between consensual relationships and coercion.
The case for love contracts: Protecting employers and employees
Despite the court’s ruling, some argue that love contracts remain necessary to address the complexities of workplace relationships.
Eugene Asero, a Human Resource Manager at Boxleo Courier & Fulfilment Services, is in the process of crafting a love contract that aligns with Justice Rika’s decision.
“These employees are the vulnerable ones, if I can describe it like that,” Eugene explains. “ We need to tie the loose ends.”
Essentials of a love contract
Eugene highlights several key elements that should be included in a love contract.
First, it should clearly define what constitutes a romantic or intimate relationship in the workplace. This ensures that both parties understand the boundaries and expectations from the outset.
Second, a disclosure clause is essential. Employees should know where and when they are required to disclose their relationship. This transparency helps employers address potential conflicts of interest before they escalate.
Third, the contract should address conflicts of interest by prohibiting relationships between supervisors and subordinates or within the same department. This prevents situations where personal relationships could influence professional decisions or create perceptions of bias.
Fourth, the contract must outline acceptable behaviour to maintain workplace professionalism. This includes guidelines on how employees should conduct themselves during working hours to avoid disruptions or discomfort among colleagues.
Fifth, a harassment policy should be included to address potential issues if the relationship sours. This ensures that both parties understand the consequences of inappropriate behaviour and provides a framework for addressing complaints.
Sixth, the contract should establish protocols for handling breakups. This is crucial for maintaining a harmonious work environment and ensuring that personal disputes do not spill over into the workplace.
Seventh, confidentiality and data protection clauses are necessary to prevent the sharing of sensitive company information. For instance, an employee in the finance department should not disclose financial data to their partner, regardless of their relationship.
Finally, the contract should define disciplinary actions for violations. Eugene notes, “Not disclosing a romantic relationship is equal to violating the disciplinary actions clause.”
Lessons from abroad: The Miller v. Department of Corrections Case
The need for clear policies is underscored by cases like Miller v. Department of Corrections (2005) in the United States.
Edna Miller, a correctional officer, alleged that her workplace became hostile due to widespread sexual favouritism by her supervisor, Lewis Kuykendall, who had relationships with two subordinates.
The California Supreme Court ruled that such favouritism could create a hostile work environment, violating anti-discrimination laws.
This case highlights the risks of ignoring office romances. While love contracts aim to prevent such scenarios, they must strike a delicate balance between regulation and respect for employees’ rights.
Are love contracts legally binding?
Melissa Mwaura, an advocate with L Mugo & Co Advocates, notes that love contracts are not governed by any specific legislation in Kenya.
“These contracts are creations of individual employers seeking to regulate romantic relationships,” she explains.
“To the extent that they do not infringe upon an individual’s rights, they are lawful but not necessarily binding. If an employee feels pressured to sign to keep their job, the contract cannot be enforced.”
Melissa advises employers to incorporate such policies into HR guidelines from the outset to avoid claims of discrimination.
“If you act in a manner suggesting that one party must leave employment for refusing to sign, that brings the concept of discrimination into play. For existing employees, you need to handle such matters carefully.”
Striking the right balance
The Kenyan court’s ruling has undoubtedly shifted the conversation around workplace relationships.
While love contracts may seem outdated in light of the decision, they still serve a purpose in addressing potential conflicts and protecting both employers and employees. The key lies in crafting policies that respect privacy rights while maintaining professionalism and fairness in the workplace.
As workplaces continue to evolve, so too must the frameworks governing them. Whether love contracts remain relevant will depend on their ability to adapt to changing legal and social landscapes—without overstepping the boundaries of personal freedom.
