By Michael Byrnes, Partner, of Swaab Attorneys.
With recent developments in Australian politics, and the continued focus on the international #MeToo movement, a topic that is presently being widely discussed is that of workplace relationships.
There is a common perception that they are now, in all cases, impermissible. A few media commentators have lamented that they met their partner at work and it “wouldn’t be allowed these days” (usually followed by the cliché “political correctness gone mad“). But is that actually right?
CAN AN EMPLOYER PROHIBIT WORKPLACE RELATIONSHIPS?
In short, with very few exceptions, no.
The starting point is that an employer can only require employees to comply with “lawful and reasonable” directions. It would almost certainly go well beyond the scope of an employer’s prerogative to purport to prohibit employees having a relationship, constituting an unjustifiable incursion into the private lives of those employees.
DOES AN EMPLOYER HAVE A RIGHT TO KNOW IF EMPLOYEES ARE IN A RELATIONSHIP?
This will depend on the circumstances. An obligation to disclose will usually be enlivened where there is an actual or potential conflict of interest. Such a conflict most commonly arises where a relationship forms between employees and one of them is in a position of power or influence over the other, such as (although not confined to) a manager and an employee who reports to them. Disclosure is important so that the employer can manage this conflict. This might be done by seeking to transfer one of the employees into a different role or changing reporting lines or supervisory responsibilities. Such changes, however, cannot be punitive; they need to be specifically directed at managing the issue of conflict of interest.
WHAT CONSTITUTES A “RELATIONSHIP”?
It’s a fundamental question but not one that is not always easily answered; even the participants can sometimes have different perceptions as to characterisation. Without wanting to delve too deeply into modern social mores, ongoing and regular intimacy with another person would likely constitute a relationship for disclosure purposes, even if the parties may view it as something more casual. Where there is an obligation of disclosure employees should be careful not to take an overly technical approach to definition in the hope of avoiding it. Employees who are “too clever by half” in this regard can come unstuck, not by virtue of the relationship per se, but a lack of candour about it.
IF AN EMPLOYEE IS MARRIED AND THE WORKPLACE RELATIONSHIP IS AN “AFFAIR” DO THEY NEED TO DISCLOSE IT?
Marital status will usually have no impact on any obligation to disclose. It’s not about morality; it’s about the conflict. Any disclosure made (whether the parties are married or not) should be treated in confidence and only revealed to those with a genuine need to know in the organisation.
WHAT ABOUT THE CONDUCT OF THE RELATIONSHIP AT THE WORKPLACE?
An employer is entitled to insist upon professional and appropriate conduct in the workplace. As such, an employer may be able to prohibit, or take action in response to, “public displays of affection” or “lovers’ tiffs” if they occur in the workplace. In doing so, however, the employer needs to be consistent. For instance, if arguments or robust discussions about non-work matters are commonplace in the workplace then disciplining the couple without taking action against others (not in a workplace relationship) who engage in similar conduct could be problematic.
CAN AN EMPLOYEE ASK A COLLEAGUE ON A DATE?
There is no specific legal prohibition on doing so, but depending on the way it is framed such an invitation could be unwelcome conduct of a sexual nature and constitute sexual harassment. It’s a legal risk as much an emotional one. Unless the employee is certain of an affirmative response, or that the question (even if answered with a rejection) is not going to cause offence (an essential element of sexual harassment), then it could be unwise.
THE RELATIONSHIP IS OVER – DOES AN EMPLOYER HAVE AN OBLIGATION TO KEEP THE EMPLOYEES APART?
Absent conduct such as bullying or harassment by either of the parties, an employer has no obligation to separate employees who were once in a relationship but no longer want to see or deal with each other. In fact, those employees have an obligation to conduct themselves in an appropriate, collegiate manner, irrespective of any rancour. That said, employers will sometimes take a practical approach and separate employees for the sake of workplace harmony (as they will in the case of employees in dispute for different reasons).
SOME FURTHER POINTS TO CONSIDER
Of course, the analysis set out above is generalised. While it will hold true in the majority of cases, there are also circumstances where different standards or considerations may apply producing different outcomes.
It isn’t the role of employer to play “moral guardian”. Actions against employees based on intrusive paternalism may lead to unfair dismissal proceedings or discrimination claims on the basis of relationship status. Perhaps ironically, the issues arising from workplace relationships need to be considered dispassionately, focusing on impact on the employer (particularly conflict of interest) rather than notions of “right or wrong”.
A sensible, properly formulated policy is a useful starting point for employers wanting to successfully navigate this often difficult and sensitive issue.
This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.
This article originally appeared on the Swaab Attorneys website and has been reproduced with permission.