'It does become quite murky when you have relationships forming between co-workers, particularly when there is a power imbalance'
On Valentine’s Day, romance is in the air for many.
And given that we spend so much of our time at work, it’s inevitable that close relationships with colleagues sometimes cross over into romantic relationships, says Jaime Lomas, managing director employment law at DTI Lawyers.
New Zealand employment law doesn't explicitly address office romances though, she says.
“There are obviously legal considerations and principles that employers should be aware of in terms of managing and dealing with workplace relationships,” says Lomas.
As we mark Valentine’s Day, she notes some measures employers can take to ensure romantic relationships don’t end up being problematic for an organisation.
Relationships with co-workers
“It does become quite murky when you have relationships forming between co-workers, particularly when there is a power imbalance,” says Lomas. “For instance, if someone is a direct report of a person they're in a relationship with, that can come with all sorts of issues that employers have to carefully manage.”
The last thing organisations want to do, she says, is create situations where relationships are conducted in secret.
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“When that happens, an employer has no visibility about what's going on, and can't watch out for some of those common issues that could arise as a result,” says Lomas.
The key instead, she says, is to keep communication open and have policies in place so that all parties can act in good faith with trust and confidence, so employees feel comfortable disclosing information about relationships. Only then can an employer actually manage it.
“Having a policy around disclosure is really important,” says Lomas. “So making it clear that employees who do form a romantic relationship with a co-worker should disclose to HR or the appropriate manager, so that the employer can be aware and ensure steps are taken to avoid potential conflicts of interest,” says Lomas.
Reporting lines and romance
“Sometimes, employers have non-fraternisation policies or requirements that if there's an office relationship, and there is a power imbalance between the two employees in respect of their roles at work, that then triggers a change of reporting lines. For example, it gives the employer the ability to move a manager to another department without necessarily needing their agreement.”
It’s crucial, says Lomas, that any policies ensure there's no unequal treatment, favouritism or perceptions of bias.
“That’s really important, because if other employees perceive that someone is receiving favourable treatment, and they are in a relationship with another employee who happens to be in a position of power, then that can obviously trigger down and have an effect on the wider team and the perception about whether or not people are being treated equally and fairly.”
Depending on the size of the business, managing workplace relationships could be as simple as delegating decision-making in respect of that employee to someone else, she says.
“An alternative could be to have a panel of people that makes decisions about an employee so that it’s not just the person who’s in a relationship.”
Focus on behaviour and impact on work
The focus should be on behaviour rather than relationships per se, notes Lomas.
“If an office romance is impacting behaviour at work, or is causing issues, that's when an employer has the ability to be able to intervene - for instance, if they think it’s having an impact on the wider team, impacting culture of the workplace, or leading to other issues.
“An employer is only empowered to do that though that if they've got policies in place which set that out what can be done in respect to those relationships.”
It’s not just romantic relationships within an organisation that can potentially cause difficulties for organisations. If a company has confidential information or trade secrets but an employee becomes romantically involved with someone who works for a competitor, there may be a fear of breach of confidentiality.
Employment agreement and romantic relationships
“This would be managed by the terms of an employee's employment agreement and the implied duties that go along with an employment relationship around confidentiality,” says Lomas.
“Confidential information you become privy to as a result of your employment cannot be disclosed to anyone outside of the organisation without having expressed authority. Employers have the ability to take action if they believe that there has been a breach of confidentiality.”
Under the good faith obligations of an employment agreement, if an employer has concerns about an employee’s relationship, they need to have good grounds in order to justify raising the topic with them, notes Lomas.
“In a situation like this it would be a matter of having a conversation with an employee about it, highlighting a concern, and emphasising that the employer wants to have an open conversation in good faith.”
Proactive employers
Employers preferring to be proactive should have a comprehensive conflict of interest policy, which goes into further detail, emphasises Lomas.
“That would be quite prudent if you were a business organisation which had a lot of confidential and sensitive information and trade secrets,” she says.
“The key thing is disclosure and having appropriate policies, which then gives the employer the ability to be able to deal with issues that may arise.”