Office romance is a reality. A 2008 study found that at any one time, at least 11 per cent of Australian workers are involved in a romantic relationship with a co-worker, while studies in the United States of America indicate 33 per cent of all romantic relationships are initiated in the office. There is no reason to think things will have changed much in these figures more recently.
It’s not new
It is not surprising that people who work closely together develop shared interests and a sense of connection. After all, employees spend more waking hours in the workplace than they do engaged in social activities.
However, while workplace romance has always existed, studies indicate that it is on the rise. This has been attributed to a combination of factors, including:
- more women entering the workforce and occupying a greater range of positions
- the increase in time spent in the office – the average total workday for most workers has increased over the last two decades
- an increase in collaborative, team-oriented work
- greater use of technology that facilitates the exchange of personal information.
The negative effects of office romance
While the worst problems tend to arise when the relationship fails, even successful workplace romances can cause problems. Personal issues and distractions can be damaging to productivity, particularly during the intense early stages of a romance.
Not all couples are able to maintain the distinction between work and play. What begins as a mild display of affection can soon turn into inappropriate sexual conduct at work. According to one survey (www.vault.com) many liaisons take place on company time.
The study found that the most popular spot for an office tryst is in the boardroom, with 23 per cent of those polled reporting it the best place for a rendezvous. Other popular company locations are the boss’s office (11.4 per cent), the copy room (10.3 per cent) and the elevator (9.7 per cent).
Where the relationship is between a manager and a subordinate the risk of perceived or actual favouritism is even greater. The professional judgement of a manager who is romantically involved with a subordinate is likely to be challenged. The manager may be tempted to confer undeserved privileges on the employee, or overlook conduct which would ordinarily merit a disciplinary response.
Where an office romance fails, the consequences can be disastrous. The grief and resentment which arise in the wake of a break-up can make it almost impossible for those involved to work productively together. Personal arguments in the workplace become more likely, and co-workers will almost certainly be affected.
Legal issues
Loss of productivity and morale are not the only problems that can arise from workplace romance. Employers may also find that issues of legal liability arise, even where the relationship is consensual. The most likely exposure to liability is in relation to a claim of sexual harassment.
Sexual harassment in Australia forms part of anti-discrimination law. Sexual harassment1 is any form of sexually related behaviour that:
- a person does not want, and
- in the circumstances, a reasonable person would expect to be offended humiliated or intimidated by.
Many claims for sexual harassment arise from innocent flirting in the office. Such behaviour may even be welcome to begin with. The difficulty arises when one party goes further than the other one is comfortable with. In addition, consensual conduct may later be described as unwelcome should the relationship between the parties deteriorate. The aggrieved person may then make a complaint under state or commonwealth sexual harassment laws.
In addition, an employee may bring a claim for sexual harassment because they have been exposed to a sexualisation of the workplace. In other words, an employee could bring a claim because their co-workers have allowed a sexualised atmosphere to affect the workplace. The existence of a consensual relationship in the office would not be on its own sufficient to found such a claim, but inappropriate sexual contact in the workplace (including workplace functions) could be enough.
In an unfair termination case2, the Australian Industrial Relations Commission upheld the right of Telstra to dismiss an employee on the basis that her behaviour in being naked in a hotel bath with two Telstra male workers constituted sexual harassment of three female colleagues who were sleeping metres away.
Protective measures
Employers will be vicariously liable for sexual harassment by their employees where the harassment occurs in the course of employment, unless the employer can show it has taken reasonable precautions to prevent the behaviour.3 An employer will need to show that it carried out a package of affirmative actions to ensure that steps and strategies have been put in place aimed at preventing sexual harassment.
The preventive measures to be taken would ordinarily include the implementation of adequate educational programs on sexual harassment issues and monitoring of the workplace to ensure compliance with its sexual harassment policies.4
Anti-harassment policies which include a complaints procedure should be adopted and publicised among employees. All OHS regulators now police complaints of harassment and will readily issue provisional improvement notices for policies, procedures and processes that are inadequate. With the new National Model Work Health and Safety laws about to kick off across most of Australia, the new Code of Practice around bullying quite clearly contemplates any behaviour that humiliates or threatens. The prospect of prosecution – which includes fines up to $3 million for business, $600,000 for directors/officers and $300,000 for workers (along with imprisonment for up to five years) – should warn business of the risks of not addressing the issue. Legislation across Australia is lifting business’s accountability around sexual conduct.
Policies regarding consensual relationships
Every business should consider developing a policy on workplace romances. Such a policy shouldn’t prohibit all dating between colleagues but it should prohibit dating between supervisors and subordinates who are in a reporting relationship. If you do write such a policy, you will also need to include the couple’s disclosure obligations, the actions the company may take, and the consequences of violating the policy.
Back up policies with training
Train your entire workforce annually about sexual harassment and include the issues raised by romances at work and your standards of professional conduct. Employees of all levels should be educated about the types of conduct that could be considered unlawful harassment. Ensure that supervisors understand that relationships with subordinates bring their credibility into question and raise significant concerns about conflicts of interest and harassment.
It is one thing to create policies but you must be able to demonstrate employees are competent in them. In the recent case of Noble v Baldwin5, a female employee was awarded compensation because her male manager stated, “I select employees based on the size of their breasts”. Such comments and behaviour should never occur and reflect a failure in the training system around policies and procedures.
Be prepared to discipline employees who contravene your harassment policy. You need to enforce your policies in a timely and consistent manner.
If a workplace romance gives rise to any breaches of policy, it is important that you take responsive action even if one or both of the employees involved are quite senior in tenure or level.
You might also consider ‘love contracts’. These contracts will not prevent harassment claims but they may help with your defence.
Consensual relationships
In the United States, it is now common for companies to use love contracts to document the fact that a workplace relationship is consensual. The dating parties sign contracts that state the relationship is consensual, explain what the parties should do if the relationship ever ceases to be consensual, and affirm that the employees are aware of the company’s policies on sexual harassment and workplace ethics and understand the consequences of failure to follow those policies.
The employer has the advantage of knowing that up to executing the love contract, there has been no harassment and if any develops, the duty to report it is squarely on the shoulders of those involved.
This protects the employer against any sexual harassment claims as the love contract provides compelling evidence the employees entered the relationship voluntarily. However, as with anything else, the love contract has its critics who argue that a love contract can be intrusive, ineffective and unnecessary. A business should carefully consider whether it wants to go down this path.
Endnotes
1 Equal Opportunity Act 2015 Part 6.
2 Telstra Corporation Ltd v Streeter [2008] AIRC 15
3 Equal Opportunity Act 2015 sections 109, 110
4 Coyne v P&O Ports [2000] VCAT 657 (31 March 2000)
5 Noble v Baldwin [2011] FMCA 283
