Love is in the air – Tips and Traps when Policing Workplace Romances

Love is in the air this week with Valentine’s Day being a timely prompt for employers to think about how they deal with office romances.

Office romances are common. In fact, science supports the phenomenon with research suggesting that people with certain personality types are attracted to certain professions which means we are more likely to work with people we have a lot in common with – and that is a strong basis for attraction.

However, there can be consequences for engaging in office romance for all parties concerned. Particularly where there is an uneven power dynamic in play, for example a senior manager in a relationship with a direct report, employers hold valid concerns about employee health and safety, conflicts of interest and reputational harm.

There are also legal risks that arise when relationships break down, such as the risk one party to the relationship may allege sexual harassment, bullying or other unfair treatment.

Employees have a general duty to act in the best interest of their employer, which can extend to fiduciary duties for senior employees.  These duties are often relied on as a basis for employers to regulate the relationships of their senior employees, including through mandating disclosure of, or prohibiting, workplace romances.

We often help businesses implement intimate relationship policies in their workplaces. However, employers should be careful not to take a carte blanche approach to workplace relationships.

Careful consideration should be given to a range of circumstances of the relationship and the workplace including, the seniority of the employees involved, the nature of their roles and reporting lines and the likelihood of the relationship to impact compliance with other laws or policies.

A well drafted policy can be useful to outline relevant considerations for employers, and disclosure requirements of employees.

However, there are sometimes overlooked risks that employers should be aware of before intervening in an office romance.

Discrimination protections for employees in workplace relationships

Discrimination laws protect employees from disadvantage at work on the basis of their marital status and lawful sexual activity.

This means that if an employee is disciplined, terminated or otherwise disadvantaged for having or disclosing an intimate relationship at work, they could bring a discrimination claim.

The attribute of marital status

The protected attribute of “marital status” under discrimination laws (including the Fair Work Act) arguably applies to employees in extra marital affairs. This means that while an employer may have strong policy and moral reasons to act against employees in an extra martial workplace relationship, these laws may protect employees where the action is motivated by the fact of the affair itself.

Employer intervention may only be lawful in limited circumstances, such as where action is necessary to comply with other relevant laws like workplace health and safety. Intervention based on other common reasons like team morale, conflict of interest, or reputational harm may not stack up in defence to some discrimination claims.

We encourage employers to seek legal advice early before intervening or disciplining employees in these circumstances.

Lawful sexual activity

Victorian discrimination laws also protect employees who engage in lawful sexual activity. Obviously, lawful sexual activity does not include sexual harassment, assault or other unlawful behaviour like grooming.

In 2015, the Supreme Court considered whether a school principal’s decision to dismiss a teacher in a relationship with a former student, was based on the teacher’s ‘lawful sexual activity’ with the former student.

The Court upheld that the termination was unlawful because the lawful sexual activity of the teacher with a former student was a substantial reason for the decision. This was in circumstances, where the principal acted on other reasons for terminating the teacher, including that it was concerned about the teacher’s transgression of the appropriate teacher – student boundary and allegations of grooming.

This case is still good authority. It is a reminder that while employers may consider it appropriate to intervene in a workplace relationship, caution should be exercised in the context of the protections that apply to employees who engage in lawful relational, extra marital or sexual activity.

Key takeaways for employers

1. In most cases, a workplace relationships policy is necessary and appropriate to regulate substantial business risks that are foreseeable regarding workplace health and safety, employee wellbeing, and harms to corporate culture and reputation.
2. A well drafted workplace relationships policy is critical. It should articulate with appropriate context the respective rights and obligations of the employer and employees in the circumstances of a workplace relationship.
3. It should be flexible to allow appropriate and proportionate decisions to be made by the employer, considering the protections attaching to employees regarding their marital status and freedom to engage in lawful sexual activity.
4. Employers should also consider express terms in senior management contracts to impose duties of trust and confidence and terms that require employees to act honestly and reasonably, promote the interests of their employer, avoid conflicts of interest and disclose any actual or apparent conflicts of interest.
5. A strict, no tolerance approach to office romance should be worked through with legal advice, as it may give rise to employment and discrimination disputes.
6. Similarly, employers with policies that mandate disclosure of workplace relationships, which is often appropriate, should be careful to ensure that they act appropriately with the information disclosed, observing relevant privacy laws and considering the risks of a discrimination claim if the information is used, or perceived to be used, to later disadvantage the employees involved.

Please contact our Employment, Discrimination and Equality Team for more information or to discuss your workplace relationships policy.