After a love affair between the former Bild boss and a Bild employee became known, the Springer group announced stricter rules of conduct based on the American model. According to Gandhi, love is the most powerful force, so it is questionable what legal obstacles a business owner can create.
Walmart’s compliance rules for inclined hiring attorneys will likely come to mind immediately. As early as 2005, German courts rescinded Wal-Mart’s code of conduct, which had been adopted in Germany based on the American model, and deemed ineffective. Walmart’s compliance rules at the time stated that an employee should not date or form a romantic relationship with anyone who could influence working conditions or whose working conditions could be affected by the other person.
LAG Düsseldorf determined the ineffectiveness of this code of conduct. Ineffectiveness results from violating an employee’s fundamentally protected personal right. So far, not much criticism has been leveled at LAG Düsseldorf’s opinion from 2005. It can therefore be assumed that this opinion will continue to be confirmed by case law. Therefore, it is still not possible for companies to impose a ban on employee relations.
From a legal point of view, codes of conduct or “compliance rules” in New German represent work instructions. Work instructions are only legal if the employee’s interests are taken into account.
In this balance of interests, the employer can in any case argue in favor of a ban that this ban is intended to prevent sexual harassment in the workplace. In practice, terminations for sexual harassment often fail because victims have not sufficiently demonstrated their rejection of unwanted sexual advances. This is often the case when superiors abuse their positions of power and subordinates do not dare to take action against their superior. A clear prohibition of any sexual relations in the company can help here and anticipation of possible excuses for perpetrators of crimes.
In addition, this prohibition also serves to counteract conflicts of interest in the workplace and any improper privileges or favors given due to romantic relationships. Here, too, employees can be effectively protected from abuse of power by their superiors.
Despite the employer’s laudable goals, a blanket ban on relationships would not be appropriate. The privacy of employees is protected by their personal rights under the Basic Law. No one can be told about the sexual partner of their choice or with which partner to start a romantic relationship. Even if fundamental rights apply only to the state, they must also be taken into account in legal relations between individuals, and therefore have a special effect when balancing interests.
Springer Group’s declaration that violations of the new compliance rules will also result in terminations will not be enforceable in most cases.
However, it is legally possible to be regulations under which only disclosure of relationships with an employer is required. So if information obligations are formulated only without prohibiting relationships across the board, such concern on the part of the business owner can be justified. Because the infringement of personal rights is greatly reduced here. The business owner can claim that the information is necessary to counter abuse of power or conflict of interest. In such cases, the business owner can dismiss the lovers through transfers (at least in the company). However, whether incorrect information from the employee can lead to the termination of the employment relationship depends on the individual case.
In any case, employers are advised to moderately apply American rules, because in most cases it is love that wins.