Wine me. Dine me. But don't 'Weinstein' me.

By Bianca Seeto – Partner and Solicitor at FCB Workplace Law

 

From the most infamous scandal involving the powerful Hollywood producer Harvey Weinstein to allegations against Australian TV royalty, Don Burke, the media’s coverage of sexual misconduct has been insatiable.

Conduct that may have been swept under the rug 20 years ago, simply won’t be tolerated today. With this shift in attitude, even consensual workplace relationships are under scrutiny – particularly romances involving senior employees.

Reports suggest 50 per cent of working people will participate in an office romance at some time in their careers, with the odds greatly increased for those working in hospitality and tourism. The challenge for employers is to ensure workplace attractions do not lead to incidents of sexual harassment.

So what should employers do to prevent office romances from becoming a problem for the business?

 

Prevention

The adage ‘prevention is better than a cure’ rings true in sexual harassment cases.

You need your employees to understand the stance your business takes regarding workplace relationships and sexual harassment. This is most easily achieved with clearly drafted policies and procedures, and the training and development of your employees. It’s also important to provide channels for employees to lodge complaints, so you can stay on the front foot if there are any breaches of your company policy. 

Preventative measures must come from the top. Senior executives need to lead by example, so your message is consistent through all areas of the business.

 

TIP 1 – Set the ground rules for consensual relationships

As an employer, you can’t prohibit your employees from embarking on an office romance. However, you can set ground rules as to how office relationships are managed. While it may seem like a private matter, if the two lovebirds work in close proximity then the relationship has the potential to adversely affect the workplace.

Employers should have a clear policy on workplace relationships and provide training to employees on the policy at regular intervals, so they’re aware of their obligations and the consequences of non-compliance.

Your policy should require employees to disclose workplace relationships either to HR or management. This ensures you’re in a position to identify and deal with the number one concern that comes with a consensual relationship: a potential conflict of interest.

Conflicts of interest are more likely to occur when one employee in the relationship has the potential to influence the working arrangements of the other. For example, where the relationship is between a manager and a subordinate.

When confronted with a potential conflict of interest situation, the appropriate solution will depend on the size of your workplace and the nature of your operations. However, actions to consider include changing reporting structures, reassigning tasks or roles, or implementing other mechanisms to avoid an actual conflict or the perception of conflict (which is just as damaging in a group dynamic). This may involve a review of the employee’s employment contract to see if such changes are provided for. 

You should also be clear about the consequences of failing to disclose a workplace relationship, which may involve disciplinary action including termination of employment.

 

TIP 2 – Be clear about unacceptable workplace conduct

The fact that two individuals have been in a consensual sexual relationship doesn’t mean that sexual harassment may not occur following the end of the relationship.

Sexual harassment is any unwanted or unwelcome sexual behaviour where a reasonable person would have anticipated the possibility that the person harassed would feel offended, humiliated or intimidated.

Applying this definition, sexual harassment is not consensual behaviour or mutual attraction. However employees need to be aware that just because there was once a mutual connection, if that is no longer reciprocated then any unwanted attention has the potential to become sexual harassment.

Employers need to be clear about the expectations the business has in relation to behaviour it will not tolerate, including sexual harassment (which is not only undesirable conduct but also unlawful). This is especially important because it’s not just individuals who are liable for conduct amounting to sexual harassment. Employers can also be held vicariously liable for the actions of their employees. There is an exception to this if the employer establishes that it took all reasonable steps to prevent the employee from engaging in the alleged conduct. A well-drafted sexual harassment policy that your employees are trained in, acknowledge and understand goes a long way to relying on the defence.

 

TIP 3 – Have multiple complaint channels

Be curious. I’m not suggesting you rush to read the 15 tell-tale signs that your employees are having an affair, which describes “both looking great” and “not seeming to get any work done” as two key things to have on your office romance radar (yes, this article really does exist).

If you’re clear about your disclosure expectations and no conflict of interest exists, then let the consenting happy couple continue on their merry path.

However, you need to (and should want to) know about any non-consensual situations so you can eradicate the behaviour. Every business needs to have a detailed grievance procedure that allows for the escalation of the complaint if the employee isn’t satisfied about the response. Be clear about who in your business will be responsible for dealing with such grievances.

 

TIP 4 – Get the investigation right

It’s important to have a clear and unbiased view of the events that took place. This can quite often be achieved through an internal investigation conducted by your HR team.

In some circumstances, where the allegations are numerous and serious and have the capacity to cause the employer severe reputational damage, it may be prudent to outsource the investigation.

Outsourcing to a legal professional preserves legal professional privilege over the investigation report. This means you can have a ‘warts and all’ account of what went on without having to disclose the report in legal proceedings, which means you can deal with any identified problems swiftly and confidentially.

 

Summary

There’s been seen a dramatic increase in compensation awarded to the victims of sexual harassment within the workplace. And there is a clear link between the approach the courts are willing to adopt and community standards.

Community standards are such that this type of conduct will not be tolerated. Businesses need to be mindful of not only the legal consequences, but also the effect negative publicity can have on the company’s reputation.

With a new sexual harassment scandal coming to light nearly every day, businesses must understand the possible risks and focus on preventative solutions.

 

Bianca Seeto is a Partner and Solicitor at FCB Workplace Law and an Accredited Specialist in Workplace Relations Law with the Queensland Law Society. She has been providing clients with industrial relations and employment law advice for more than a decade, and has special expertise in advising clients in the retail sector.