Managing Romantic Relationships in the Workplace: Strategies for Regulation and Conflict Resolution.
Employees spend most of their waking lives at work. Therefore, it is quite likely that co-workers may start to develop more personal relationships with their fellow colleagues – or an intimate relationship with one person in particular. Employees have a right to privacy that should be respected in the workplace. The Constitution of South Africa, 1996, enshrines this right to privacy for every individual, which is regarded as an extension of every person’s right to dignity. However, like every other right in the Bill of Rights, it is subject to justifiable limitations. As soon as a relationship starts having an impact on the organisation, the right to privacy of the employees involved is diminished. It is then, when the relationship has a negative effect on the operation of the business that an employer can interfere and take certain disciplinary steps.
The following are some of the circumstances in which issues may arise:
Where a romantic relationship exists between two colleagues.
Where a romantic relationship exists between a superior and a subordinate.
Where one of the parties in a romantic relationship is in a position of influence over the counterpart’s salary, bonuses, promotion, work division, etc.
Where there is inappropriate conduct at work.
Where a breakdown in a romantic relationship hampers productivity and creates a disharmonious work environment; or
Where there is a duty to disclose a romantic relationship, but the employees in a relationship fail to do so.
Scenario 1: An employee has an affair with the CEO’s wife
This actually happens! In this scenario, believe it or not, there is no misconduct involved. The employee can be charged with stupidity yes, but not misconduct.
Here the CEO and the employee will need to have a one-on-one meeting to try and resolve the matter. If the CEO cannot continue working with the employee, it is suggested that the CEO propose a ‘termination by agreement’ to the employee. This will be where the CEO suggests to the employee that they end the employment relationship. This will involve no money other than payment in lieu of notice. If the employee does not accept this, the CEO should give the employee notice of termination on the basis of incompatibility. Incompatibility would be where the employee is not able to work in harmony either within the corporate culture of the business or with fellow employees. The employee’s conduct could be the cause of incompatibility in the workplace.
An adulterous relationship is not necessarily grounds for instituting disciplinary action against an employee. Employers need an operational, not a moral reason to take disciplinary action.
Scenario 2: Co-employees become intimately involved.
In this situation, there would be no reason to intervene. However, if the relationship impacts on the working environment, then the employer has the right to intervene.
For example, the employees involved may behave inappropriately at work, or personal conflict that could flow over into the workplace. The employer does not have the right to expect the employees to end their relationship, even where it has a negative impact on the workplace. This would be an invasion of privacy. In this scenario, the employer would use less restrictive means to maintain discipline and protect its interests. It would be advisable to resort to disciplinary action instead of dismissal. The employer could charge the employees with misconduct, alleging that there is a workplace rule prohibiting inappropriate and intimate conduct in the workplace. However, the employer must make sure it has a ‘do not fraternise’ clause in its employment contracts.
Improper conduct can justify disciplinary action but expecting employees to end a relationship would be an invasion of privacy. Another possible option is that employees could be moved out of the same department if this is feasible. But here again, because it is changing the conditions of employment, the employer needs to get the employee’s consent.
The laws around workplace relationships:
Employers’ right to regulate their employees’ out-of-work conduct remains a contested legal question. However, one thing is clear: it depends a lot on where the relationship takes place.
One example is the case Keenan versus Leighton Boral Amey Joint Venture, brought to the Fair Work Commission in 2015. The commission found the employee, who engaged in “aberrant” behaviour, was unfairly dismissed, as some of the more serious incidents in question occurred beyond the temporal and physical boundaries of the workplace. If the conduct had occurred in a work setting, the employer would have been vicariously liable for employee behaviour that breached sexual harassment policies. A key factor in this case was that the employer directed employees to follow their policies at the work function. So, the employees decided to leave the venue altogether and continue drinking, outside of what was deemed to be the workplace.
Employers can’t expect to assert the right to act against employees who they think have misbehaved if they don’t set out rules on employee conduct in the first place. This is the reason workplaces have clear policies on relationships.
Interestingly, the Labour Court expressed the following view on workplace romances in the decision of Rustenburg Platinum Mines Limited v UASA obo Pietersen and Others: “A workplace is exactly that and should not ordinarily be confused with a ‘find me love’ sanctuary or lonely hearts’ club for love-sick employees. I agree with the Commissioner’s observations that there is nothing wrong with employees being attracted to each other at the workplace. After all, we are all part of Homo sapiens with feelings and emotions, and it is possible for the office affair to turn into a ‘happily thereafter union.’ There is a school of thought that holds the view that human beings can be slaves to their urges. That being so, it does not imply that employees are incapable of controlling those urges in the workplace. A workplace should be free from ‘amorous’ and testosterone-filled employees looking for love and gratification at every available opportunity. There is everything wrong when employees express their affection in the workplace to each other, to the point where the conduct in question is frowned upon, as it crosses that fine line between innocent attraction and sexual harassment.”
Ordinarily, employers should not interfere with romantic relationships between employees in the workplace. However, it is also clear that these relationships can have a negative impact on the workplace and on how employees conduct themselves at work. Whilst it is not disputed that employees have a right to privacy; a balance must be struck between a right to privacy and the possible impact that a romantic relationship between employees may have on the workplace. Where a workplace relationship has a negative impact on the operations of an employer’s business, the employer may be entitled to intervene.
To regulate situations such as the above, employers are increasingly looking for ways to manage workplace relationships. The introduction of a policy governing relationships in the workplace, or the incorporation of appropriate clauses into contracts of employment, would, where appropriate or necessary, enable employers to “set the boundaries” for such relationships and to ensure that the necessary steps are taken to safeguard a harmonious working environment.
Whilst some employers have introduced policies that specifically regulate romantic relationships in the workplace, the implementation of principles and guidelines to govern workplace relationships need not necessarily be included in a standalone policy but can be integrated into existing policies, where applicable. Many employers have codes of conduct or policies that deal with topics such as sexual harassment and conflicts of interest, and these policies may be amended to incorporate appropriate measures that regulate romantic relationships in the workplace adequately.
This perspective suggests that employees should be discouraged from expressing any affection towards each other in the workplace, particularly where the relationship is between senior employees and their subordinates.
From a practical point of view, an outright prohibition on romantic relationships in the workplace incorporated into a policy or contract would generally not be the solution, nor would it typically hold muster in the realm of fair workplace practices. An important question that then arises is what measures can be implemented in the event that workplace relationships are negatively affecting the work environment.
Clear guidelines should be set to regulate and govern romantic relationships. These could include:
When a romantic relationship must be disclosed and to whom.
What steps will be, taken if there is a romantic relationship between a superior and a subordinate, or where one of the parties to the relationship could have influence over the other’s bonus, salary increase, disciplinary measures, etc.;
The type of conduct in the workplace that can be expected of employees who are parties to a romantic relationship: and
When a breach of a policy may result in disciplinary action.
Employers will need to navigate each case on its own merit, paying particular attention to the effect of the consensual relationship on the workplace. It may become necessary to transfer an employee to a different division or department, change their duties, or change a reporting line in order to accommodate the consensual relationship whilst maintaining a professional and comfortable workplace for all employees. If an employer decides to take any of these measures, it should be careful not to favour one of the parties over the other.
An employer may consider taking disciplinary action for breach of a policy. Further, instances of incompatibility (i.e.an inability on the part of an employee to work in harmony either within the corporate culture of the business or with fellow employees) may also arise.
An employer may also have to take particular care when a relationship comes to an end. An act that was acceptable in a consensual relationship may become inappropriate or even create the possibility of a sexual harassment allegation. The failure of an employer to take appropriate action in these circumstances may lead to it being held liable in terms of section 60 of the Employment Equity Act.
While this may be desirable for employers, it is often difficult to keep employees’ private and work lives wholly separated. Employers should consider setting appropriate guidelines for romantic workplace relationships. This will not only be important for clearly defining what is expected of employees but will assist in mitigating any risks and harm that can be caused by romantic workplace relationships.
