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Crossing the boundaries: when can employers intervene in personal relationships in the workplace?

Libby Pallot, Anthony Massaro, Abbey Burns, Ben Tallboys, Caitlin Walsh

Workplace romances have recently been in the spotlight thanks to two highly publicised news stories.

The resignation of two Senior AFL Executives for “inappropriate relationships” with younger and more junior female employees came just days after the conclusion of the lengthy, public and ugly legal battle between Seven West Media and Amber Harrison.

These stories have raised questions about the boundaries between our work and personal lives, whether office romances should be prohibited, and an employer’s right to regulate an employee’s relationships. Employees are working increasingly longer hours and spending more time at work. It is therefore unsurprising that many relationships begin in the workplace. So: can employers intervene, and if so, should they, and when?

While some employers may dislike or disapprove of workplace relationships, banning relationships outright may be unreasonable (and would be very difficult to enforce as a blanket rule). Employers should only manage the risk of problematic relationships, and not every office romance will fall into that category.

A workplace relationship involving a supervisor and subordinate can be a cause for concern, even if the relationship appears to be consensual. A more junior employee may feel forced to consent to a physical relationship because of the inherent power imbalance in the professional relationship. Employers need to be mindful that there is a risk that failed attempts to start a workplace relationship, or an acrimonious end to a relationship, may lead to workplace conflict and allegations of sexual harassment and bullying.

There is also the question of preferential treatment. Where a supervisor is in a relationship with a subordinate, there is a real risk that the supervisor will favour (or will be viewed by others to favour) the subordinate when it comes to decisions around performance appraisals, work allocation and promotions. The preferential treatment may not even be intentional. As the Fair Work Commission noted in the 2015 case of Mihalopoulos v Westpac Banking Corporation [2015] FWC 2087, where such a relationship exists it is virtually impossible to avoid the perception of preferential treatment or favouritism. The mere perception of favouritism can damage other workplace relationships by creating resentment from other employees.

For these reasons, employers are entitled to manage the risks arising from such workplace romances, for both the individuals involved in the relationship and the organisation generally. We recommend that in light of the recent high profile incidents, employers should:

  • Develop a workplace relationship policy. The policy should set out expectations for professional workplace behaviour, specify the obligation to disclose hierarchical relationships, and make it clear that preferential treatment constitutes misconduct. The consequences for non-compliance should also be clearly stated. In the Mihalopoulos v Westpac Banking Corporation case, the Commission held that the employee’s failure to report his relationship with his subordinate, in breach of the employer’s conflict of interest policy, was a valid reason to terminate his employment.
  • Carefully communicate the policy. Some employees may be offended by the notion that they need guidance on these areas, or at the perceived interference in their personal lives. The potential sensitivities around this topic need to be carefully managed.
  • Provide training. It is essential that employees understand the workplace relationship policy. In particular, Managers and Human Resources staff should receive training on avoiding compromising situations, and managing issues that can arise from consensual workplace relationships.
  • Address sexual harassment and bullying risks. While it is not uncommon for relationships and attractions to develop in the workplace, it is important that these situations do not lead to incidents of sexual harassment or bullying. Employers must ensure they have appropriate policies and processes in place to deal with the risk of bullying and sexual harassment (which is unlawful).

As the AFL and Seven West Media cases show, employers cannot necessarily prevent co-workers from forming romantic relationships, but having policies and procedures in place is an essential first step to effectively manage the unwanted risks that can arise from such relationships.

If you require assistance or advice in managing workplace relationships, including developing workplace policies to deal with this issue, contact our Workplace Relations, Employment and Safety Team.

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