A recent incident involving a "kiss cam" at a Coldplay concert earlier this month has drawn attention to the complications of workplace relationships. A legal expert answers common questions about managing relationships between employees.
The recent story of colleagues (a CEO and a Chief People Officer) whose apparent relationship was captured on a "kiss cam" at a Coldplay concert has captured the public imagination, resulting in thousands of articles, parodies and jokes. In the aftermath of the incident, the CEO has resigned his position and left the employer.
The episode has put the spotlight on the issue of workplace relationships and the legal issues arising from them.
There is a common perception that they are now, in most cases, impermissible. A few media commentators have lamented that they met their partner at work and it "wouldn't be allowed these days". But is that really the case?
Here are seven legal grey areas that can arise when managing a workplace relationship, and how HR should respond.
1. Can an employer prohibit workplace relationships?
In short, with very few exceptions, employers have no legal right to prohibit workplace relationships.
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 prohibit employees having a relationship, which would constitute an unjustifiable invasion into employees' private lives.
However, when the relationship results in a power imbalance (such as manager becoming romantically involved with a direct report), or if it brings about other conflicts of interest for the business, that's when the lines can become blurred.
2. Does an employer have a right to know if employees are in a relationship?
This will depend on the circumstances. As outlined above, an obligation to disclose the relationship will usually apply if there is an actual or potential conflict of interest.
Such a conflict most often arises where a workplace relationship involves a power imbalance, 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 adjusting reporting lines. Such changes, however, cannot be punitive. They need to be specifically directed at managing the issue of conflict of interest.
In the now-notorious case of the Coldplay Concert duo, an obligation to disclose would certainly have arisen if, as it appears, they were in a relationship. A clear conflict of interest arises from the CEO and CPO of a company having a relationship.
A relationship like this should be disclosed to the board of the company, so it's in a position to take the difficult steps to manage that particular conflict.
3. What constitutes a "relationship"?
This is a fundamental question, but one that is not always easily answered. Even the employees in the relationship can sometimes have different perceptions as to its characterisation.
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 disclosure.
Employees who are "too clever" in this regard can come unstuck – not due to the relationship, but a lack of candour about it. A defence like "It was a situationship, not a relationship" is unlikely to find favour.
The Coldplay concert duo might not have regarded themselves as being in a relationship. However, their behaviour suggests a level of personal intimacy that would, if indicative, have triggered an obligation to disclose before they flaunted it at a stadium.
The apparent guilt reflected in the way they responded to their appearance on the jumbotron suggests their physical interaction was not a momentary aberration arising from them getting swept up in the concert, but rather an ongoing situation.
"It isn't the role of the 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."
4. 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 involved. Any disclosure made (whether the parties are married or not) should be treated in confidence and only revealed to those in the organisation with a genuine need to know.
It has been reported that the CEO was still married. While this has been an understandable point of interest in general coverage of the story, it is the lack of disclosure of the apparent "affair" that presents the more significant problem for his employment than the fact he may have been unfaithful to his spouse.
The fact the CEO was still married neither created nor negated any obligation he may have had to disclose a relationship with the CPO to the board, as uncomfortable as that may have been.
If he was unmarried, he would still have needed to disclose it. If the CPO was aware he hadn't disclosed it, and he was not intending to do so in the near future, she should have disclosed it. The same applies to her irrespective of her marital status.
5. 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 heated 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.
6. Can an employee ask a colleague on a date?
There is no specific legal prohibition from doing so, but depending on the way it is framed, such an invitation could be seen as unwelcome conduct of a sexual nature and constitute sexual harassment.
Unless the employee is certain of a positive 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.
7. The relationship is over – does an employer have an obligation to keep the employees apart?
Unless there is 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).
Further points to consider
Of course, much of the analysis above is of a general nature. 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 the 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 the impact on the employer (particularly any conflicts 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.
For further information please contact:
Michael Byrnes, Partner
Phone: +61 2 9233 5544
Email: mjb@swaab.com.au
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
