Workplace relationships are difficult to ban, but employers can manage and mitigate the risk they present
Despite regular reminders from legal counsel and human resources, especially during the upcoming holiday season, the chances of romantic encounters among workplace colleagues can lead to unexpected management concerns once the festivities end. To their credit, employers have become significantly more adept and confident in addressing and resolving improper personal behaviour, particularly in circumstances involving harassment or violence within the workplace.
Many changes to occupational health and safety (OHS) legislation have been introduced across the country over the last decade, including those mandating anti-harassment and anti-violence policies, investigations, transparency, and ultimate accountability. HR professionals now regularly use these frameworks to prevent, identify, and correct harassing and violent misconduct for the benefit and safety of all employees.
It is often easier, however, for employers to anticipate, manage, and mitigate actions and misconduct that arise from non-consensual personal interaction among employees. Following and building upon the “Me Too” movement, employees who have experienced acts of harassment or violence connected to the workplace have become more confident, within the OHS legislative framework, in reporting such acts with the legal expectation and understanding that their claims will not only be objectively investigated but, if substantiated, will also be meaningfully acted upon by their employers.
Workplace a key connection point for romance
Notwithstanding growing virtual and online social interaction, statistics continue to support the view that the workplace remains a key connection point for romance. Employers are generally much less confident in addressing consensual relationships within the workplace, often due to a lack of awareness, as the employees involved largely hide their active relationships, or because the persons involved are members of senior management themselves.
As we have recently seen, a secret does not always remain a secret. Whether revealed through an ill-advised social media posting or splashed on a jumbo video board at a concert, secret consensual relationships have a way of becoming more public. More problematic for employers, particularly during the “silent” phase of these types of workplace relationships, is the workplace whispering and rumour mill, the risk of the consensual becoming non-consensual, allegations of conflict of interest, and the general undermining of workplace morale due to perceived favouritism or double standards in management.
Company morale and safety will be best served when both human resources and senior management are on the same page regarding workplace romances. While accepting that these relationships can and do happen, they should work together to create a workplace environment that promotes prompt disclosure, so that fundamental workplace structures are not impacted, anti-harassment policies are reinforced, and risks are communicated and identified.
Conflict of interest a concern
Employees who are involved in a consensual workplace relationship remain subject not only to anti-harassment and anti-violence policies, but also to prohibitions on conflict of interest when one occupies a senior position or holds power over the other.
Codes of conduct or conflict-of-interest policies can be amended and extended to include potential consensual workplace romantic relationships, including:
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An obligation, even if initially on a confidential basis, to disclose the relationship to human resources or a senior manager.
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Reinforcement that anti-harassment and anti-violence policies continue to apply and must be followed.
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A commitment to eliminate conflicts of interest where a relationship involves a reporting or authority imbalance by adjusting the role or reporting structure of the more senior employee (notwithstanding any constructive dismissal risk that may result).
If employees fail to disclose their relationship, particularly where it is objectively apparent that a conflict of interest exists or has occurred, employers can act and enforce policy, including terminating employment where appropriate. Maintaining a vigilant, albeit positive, approach to consensual workplace relationships will likely support an employer’s vigilance and actions in the event of more serious non-consensual claims.
Michael Horvat is a partner in the Workplace Law Group at Aird & Berlis in Toronto.
