Work­place Rela­tion­ships: The Legal Position

With recent devel­op­ments in Aus­tralian pol­i­tics, and the con­tin­ued focus on the inter­na­tion­al #MeToo move­ment, a top­ic that is present­ly being wide­ly dis­cussed is that of work­place relationships.

There is a com­mon per­cep­tion that they are now, in all cas­es, imper­mis­si­ble. A few media com­men­ta­tors have lament­ed that they met their part­ner at work and it would­n’t be allowed these days” (usu­al­ly fol­lowed by the clich“polit­i­cal cor­rect­ness gone mad”). But is that actu­al­ly right?

Can an employ­er pro­hib­it work­place relationships?

In short, with very few excep­tions, no.

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 pur­port to pro­hib­it employ­ees hav­ing a rela­tion­ship, con­sti­tut­ing an unjus­ti­fi­able incur­sion into the pri­vate lives of those employees.

Does an employ­er have a right to know if employ­ees are in a relationship?

This will depend on the cir­cum­stances. An oblig­a­tion to dis­close will usu­al­ly be enlivened where there is an actu­al or poten­tial con­flict of inter­est. Such a con­flict most com­mon­ly aris­es where a rela­tion­ship forms between employ­ees and one of them is in a posi­tion of pow­er or influ­ence over the oth­er, 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 chang­ing report­ing lines or super­vi­so­ry respon­si­bil­i­ties. Such changes, how­ev­er, can­not be puni­tive; they need to be specif­i­cal­ly direct­ed at man­ag­ing the issue of con­flict of interest.

What con­sti­tutes a rela­tion­ship”?

It’s a fun­da­men­tal ques­tion but not one that is not always eas­i­ly answered; even the par­tic­i­pants can some­times have dif­fer­ent per­cep­tions as to char­ac­ter­i­sa­tion. With­out want­i­ng to delve too deeply into mod­ern social mores, 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 it. Employ­ees who are too clever by half” in this regard can come unstuck, not by virtue of the rela­tion­ship per se, but a lack of can­dour about it.

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. Any dis­clo­sure made (whether the par­ties are mar­ried or not) should be treat­ed in con­fi­dence and only revealed to those with a gen­uine need to know in the organisation. 

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 robust 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.

Can an employ­ee ask a col­league on a date?

There is no spe­cif­ic legal pro­hi­bi­tion on doing so, but depend­ing on the way it is framed such an invi­ta­tion could be unwel­come con­duct of a sex­u­al nature and con­sti­tute sex­u­al harass­ment. It’s a legal risk as much an emo­tion­al one. Unless the employ­ee is cer­tain of an affir­ma­tive 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.

The rela­tion­ship is over – does an employ­er have an oblig­a­tion to keep the employ­ees apart?

Absent 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).

Some fur­ther points to consider

Of course, the analy­sis set out above is gen­er­alised. 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 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 impact on the employ­er (par­tic­u­lar­ly con­flict 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.