Workplace romances are once again in the news thanks to Deputy Prime Minister, the Hon Barnaby Joyce, MP.
Whatever you think of the reporting on Barnaby Joyce’s relationship and pending parenthood with a former staff member, it is clear that the issue of romantic relationships at work is not going to go away.
Last week, the United States House of Representatives passed a resolution banning members from having sexual relationships with members of their staff.
Independent member for Indi, Cathy McGowen spoke in Parliament about starting a conversation looking at a similar bans for Australian politicians. “The Parliament is a place of work, and good workplace practice includes clear expectations about behaviour,” she said.”
At more ordinary workplaces, employers are managing romantic relationships between staff without resorting to outright banning. Given the increasing number of hours that Australians put in at the office, it’s not surprising that workplace romances are common. A good policy regulating romantic or sexual relationships at work manages risk to the organisation without unreasonably intruding into employee’s private lives.
Getting the balance right
In order to get the balance right, you need to think about why an organisation might need to know about a workplace romantic relationship. The things you need to consider are:
1. Conflict of Interest
Organisations need to know if an employee may have competing interests when performing their role in the organisation. This especially applies to managers who are in a relationship with someone who reports to them or who have other responsibilities which enable them to favour a particular employee.
2. Appearance of Conflict of Interest
Even if a romance between employees does not affect the ability of an employee to perform their role impartially, it is important that it is clear to all employees (and to the general public) that there is no suggestion of conflict of interest
3. Avoidance of Sexual Harassment
An employer has an obligation to take steps to ensure that the workplace is free from sexual harassment of employees. The employer also has an obligation to avoid a sexualised or hostile workplace for all employees.
4. Team morale
Though there is an argument to be made that relationships between staff members can boost morale and co-operation between work areas, employers are concerned with the effect of workplace relationships on the team. This is particularly the case where the relationship goes sour and the participants break up.
Workplace Relationship Policies
There are two key policies your organisation needs to have in place to manage risk relating to workplace romance:
a. Sexual Harassment Policy
It is important to have a clear policy against sexual harassment that provides a definition of what sexual harassment is, that is unwelcome sexual conduct which makes a person feel offended, humiliated and/or intimidated where that reaction is reasonable in the circumstances. The policy should also state what sexual harassment is not – sexual interaction, flirtation, attraction or friendship which is invited, mutual, consensual or reciprocated.
It is important to tailor your sexual harassment policy to use examples that are relevant to your workplace. It may be appropriate to acknowledge that consensual relationships can and do form between co-workers and set expectations around workplace behaviour in these cases. Outright banning of relationships between employees is almost never appropriate. Besides being difficult to enforce, it is unlawful in some states to discriminate against an employee because of ‘lawful sexual activity’ which includes sexual relationships between employees.
You must clearly state in your sexual harassment policy that the organisation does not support comments or actions which may create an unpleasant sexualized environment, even where parties consent to the actions. The policy should require that interactions between all employees at work remain professional. For example, employees in a relationship should not kiss or touch each other in an unprofessional way at work because it may make others in the team uncomfortable.
b. Disclosure of Employee/Employee Relationships Policy
There are a couple of ways to approach a relationship disclosure policy:
- A policy which requires all employees to disclose sexual, romantic or other close relationships with other employees; or
- A policy which encourages employees to disclose sexual, romantic or other close relationships where they think there is a conflict of interest, or where there might be a perception of a conflict of interest.
Often the best way forward is to use a combination of the two approaches. The more senior an employee is, the greater the expectation to report all sexual, romantic or other close relationships with other employees. This is because generally the more senior the employee, the more likely they are likely to be involved in decisions that affect the other employee in the relationship.
The disclosure policy should ask employees to outline any conflict of interest (or perceived conflict of interest) that the relationship between the two employees may cause and their plan for mitigating the conflict.
What to do with disclosed information on relationships
You need to be sensitive to the highly confidential nature of the information that you are asking for. It is sensible for one or two senior people with HR responsibility to manage the register of relationships.
These managers should review the mitigation plan for any real or perceived conflict of interest and (if they agree with the plan) assist to implement the plan as confidentially as possible.
It goes without saying that you must treat the information it receives as part of the register as highly confidential – the success of the register depends on employee confidence that their personal information will be treated respectfully.
About Jodie Fox
Jodie Fox brings to Worklogic a wealth of experience gained working with clients from a diverse range of industries. Previously working as an employment lawyer at a top-tier law firm for almost 10 years, Jodie worked closely with a host of large and small clients.
Worklogic offers a range of services to help you develop effective employment policies and effective code of conduct and training programs for your organisation. If you need help in this area, contact Jodie for an obligation free consultation via email or call (03) 9981 6558.
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