Claims of harassment can follow a failed affair, says Diana Clement.
Every year thousands of employees are struck by Cupid's arrows. In some cases the amorous intentions of one employee may not be reciprocated. Many, however, will end up in a full-scale romance.
Many may think it's no one else's business who they fall in love with. It is, however, in the workplace.
Such romances can disrupt the harmony of an office and sometimes the fallout goes all the way to the Employment Relations Authority (ERA) and Employment Court.
Matthew Beattie, chief executive of Instep, cites research from the IRS Employment Review, which found the top concerns about workplace romances are:
Potential conflicts of interest;
Complaints of favouritism;
The effect on productivity;
Deteriorating employee morale;
Retaliation if relationship ends;
Sexual harassment claims; and
When romance blossoms both employees and employers need to take stock.
Employees, says Beattie, need to ask themselves:
Will this relationship harm us professionally?
Could we be subject to disciplinary action?
Will one of us to transfer to a different department or seek another job?
How will we respond to personal issues at work?
Is our relationship ethical?
Do either of us have access to confidential information that we shouldn't share?
If the relationship ends, will we be able to remain cordial?
The worst outcome for an employee may be dismissal. For an employer it could be losing a case in the ERA or employment courts.
Jennifer Mills, an employment lawyer and partner at Minter Ellison Rudd Watts, says employers have obligations to their employees under the Employment Relations Act 2000 and the Health and Safety in Employment Act to investigate allegations of sexual harassment.
The most serious risk for employers is that one of the employees in the relationship could later allege that they have been sexually harassed in their employment, says Mills. If the alleged harasser is a colleague, the employer is only responsible if the organisation has failed to take steps to prevent repetition following a complaint.
But if an alleged sexual harasser is in a position of authority he or she is deemed to be a "representative" of the employer and the behaviour is deemed to be that of the employer.
Employers can face other difficulties. Mills cites the case of a subeditor who was made redundant from a newspaper. The subeditor claimed that she had been unjustifiably dismissed because the editor chose her for redundancy ahead of another employee with whom he was in a relationship. The now defunct Employment Tribunal determined that the editor's boss should have relieved the editor from the responsibility of choosing who was made redundant.
Mills says there is also the potential for employees to bring unjustified disadvantage claims, where they consider they have been afforded less favourable treatment, including missing opportunities for promotion as a result of unjustified preference being given to a senior employee's partner who also works for the organisation.
Employment relations specialist Max Whitehead, of the Whitehead Group, has seen many cases of office romances that have become problematic. He says productivity can be affected if those involved are distracted as a result of the relationship.
In one instance a manager was asked to explain why one of his employees had Koru Club access while the others didn't. The manager denied being in a relationship with his employee but an investigation company found an email in which his staff member discussed being in the shower with him that morning.
The problem there, says Whitehead, was not that he was in a relationship with the woman but that he lied about it.
In that case, as with many, the manager wasn't dismissed but encouraged to leave.
Employers and employees sometimes seek advice from Instep. Beattie says affairs can be more problematic than relationships where both parties are single. The issue of extramarital affairs polarises people - some having far more liberal views and others being firmly against it. "We don't delineate at all," says Beattie. "Our mandate is for performance."
Mills says a blanket ban on workplace relationships is unlikely to be enforceable, but employers can take steps to manage the impact that workplace relationships have on their businesses. These include:
Ensuring that the two involved do not have reporting relationships - ideally they would be working in different departments;
Including a conflict of interest provision in employment agreements;
Having flexibility for the employer to deal with a workplace relationship and the issues that may arise; There is a specific exception to the prohibition against discrimination under the Human Rights Act that allows employers to alter the roles of employees involved in relationships with each other, but not all relationships fall within this exception so it is necessary to tread carefully.
Being aware that not all sexual advances will constitute misconduct justifying dismissal.
Before taking action against an employee on the grounds of sexual harassment, an employer should ask themselves: "What could a fair and reasonable employer do in all the relevant circumstances?"