Since there have been offices, there have been office romances. Lingering stares across the copy machine, impromptu dates by the Nespresso machine and late nights lit by the glow of the computer screen. Workplace relationships are common. But employers should be wary of the impact that such romantic relationships can have on the workplace.
Relationships don’t always have fairytale endings, and a failed romance can lead to other team members feeling uncomfortable as well as sexual harassment and bullying claims. Where the is a power imbalance between the two parties, there is also a likely conflict of interest. We set out some practical steps employers can take to protect their business and staff’s wellbeing.
Policies and Training
Employers should have in place an anti-bullying and sexual harassment policy and provide staff with comprehensive training. Employers should also ensure team members understand what conduct is unacceptable at work and work-related events. For instance, incessantly asking a colleague out, texting inappropriate messages, or making a co-worker feel uncomfortable.
Businesses may have a conflict of interest policy that requires senior employees to disclose a relationship with more junior employees. If an employee does not comply, they could be in breach of the company’s policies and procedures. Consequently, the employer may warn or even terminate the employment relationship depending on the seriousness of the circumstances and the policy itself.
How Can You Create a Safe Work Environment?
Employers have a duty to provide a safe working environment. It’s important that you don’t discriminate against or harass employees or permit other employees to harass your staff.
Broadly speaking, sexual harassment is unwelcome sexual conduct that would offend, humiliate or intimidate the team member. Under the Sex Discrimination Act 1984 (Cth), an employer may be responsible for their employee’s conduct if they don’t take reasonable steps to protect the employee from such harassment.
Sexual Harassment vs. Consensual Workplace Relationship
The difference between sexual harassment and consensual workplace relationships is whether the conduct is ‘unwelcome’. The subjective nature of the enquiry can make it difficult to assess the behaviour. Consequently, employees are less likely to speak up if they feel their job is at risk.
An employee can make a complaint about sexual harassment to the Human Rights Commission. Alternatively, employees can make sexual harassment claims under state legislation (for example, through the Anti-Discrimination Board of NSW).
An employee can also make a bullying claim to the Fair Work Commission if, for example, the co-workers are gossiping about the relationship. Bullying can involve different types of behaviour, including:
- aggressive or cruel behaviour;
- demeaning or humiliating comments about the employee;
- disclosing embarrassing information about the relationship and gossiping;
- making inappropriate jokes about the employee;
- treating the employee differently because of the relationship;
- displaying offensive material including material of a sexual nature; or
- pressure to behave in an inappropriate manner around colleagues.
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Unfair Termination
If an employee makes a complaint and the employer terminates their role, the employee can claim a breach of the general protections provisions of the Fair Work Act 2009 (the Act). Under the Act, if an employee attempts to enforce a workplace right and the employer terminates their employment in response, this is considered an unlawful termination.
If the employee succeeds in their application to the Fair Work Commission, the employer may be required to:
- pay compensation,
- reinstate the employee to their position, and
- pay potential fines for breaching the Act.
Key Takeaways
Workplace relationships are common. But employers should be wary of such relationships, particularly where there is an imbalance of power or where there is unwelcome conduct by an employee. Your business should take any complaints seriously and act promptly. If a relationship sours, it’s crucial that you don’t allow or condone any bullying or harassment, and ensure your employee continues to work in a safe environment. If you have any questions about your obligations as an employer, get in touch with our specialist employment lawyers on 1300 544 755 or fill out the form on this page.
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