The Background
Given the amount of time many of us spend in the workplace – especially in cities like Hong Kong – it is perhaps inevitable that personal relationships will flourish. For many people, they are more likely to meet a future partner at work than anywhere else. This then raises the question as to how employers should approach this sensitive issue, if at all.
From our own experience, the number of employers in Asia that have given any real thought to the potential issues is relatively small. The general approach is to adopt a reactive strategy. This might work generally but, when things go wrong, they could go very wrong indeed.
The Legal Issues
Putting the issue of work romance into a legal context, the fundamental point to remember is that every employer is responsible for the working environment and how each individual is treated within it. Using legal terminology, employers are vicariously liable for the actions of their employees – and other individuals brought into the workplace, such as contractors – as they interact with each other. Employers do not have to authorise certain behaviour, or even know about it, to be liable. Of course, there are some exemptions to this sweeping statement, but not nearly as many as some employers think.
Employers also have a duty to provide a safe place of work to every employee. This extends to their mental and emotional health, not just their physical safety. Employers must also ensure that they treat every employee with the implied duty of trust and confidence in mind. To complete the picture, the workplace should not reflect any culture of discriminatory practices or harassing behaviour.
A consensual personal relationship between two members of staff is unlikely to raise any discriminatory issues. However, if one individual gets the signals wrong and engages in inappropriate personal contact or verbal advances, then there is a clear risk of an allegation of sexual harassment – by either sex – for which the employer may well be liable legally.
Even if the parties are very happy with the personal nature of the relationship, unless the relationship is maintained in an entirely discreet way, other employees in the workplace are likely to be affected. It is critical that there is no room for other individuals to perceive favouritism or any other advantage as a result of the relationship. This is an even bigger issue if one of the individuals has a more senior role and particularly if there is a direct reporting line. There may also be challenges around confidential information, where a more junior employee might have knowledge and awareness of matters beyond the scope of his or her role by virtue of the personal relationship with a more senior employee.
When a personal relationship breaks down, the emotional state of each party is often heightened. Having emotional dramas played out in the workplace is something employers will want to avoid; they are not good for morale or productivity. Some thought should be given to this if workplace relationships are commonplace.
The Policy
There is always a balance to be struck between an employer protecting business interests and the right of employees to their private lives. Thought might be given to a policy which seeks to balance those interests and address some of the challenges highlighted above. We would recommend such a policy consists of several elements.
Firstly, there should be a clear statement explaining why the organisation feels it appropriate to seek to introduce some rules around personal relationships at work, while making it clear that, fundamentally, this is a private matter for each individual. This should be combined with a prohibition on intimate behaviour anywhere in the workplace, not just the office itself.
Secondly, situations when individuals are required to confidentially notify the organisation about the existence of a relationship should be clearly identified. These situations will generally arise when individuals work in the same section or when either party is the direct supervisor of the other.
Thirdly, the policy should also stipulate both the right to transfer an employee into another role or area when necessitated by business needs, and the right to termination of one or both employees as a last resort when the management of the relationship is having a material impact on the business.
A sensible approach will hopefully ensure that any issues can be addressed, so that the business is not adversely affected by personal relationships between staff, and that individuals are free to enjoy the workplace and any personal attachments that might emerge from their time there.
Pattie Walsh is a partner and head of DLA Piper’s Asia-Pacific employment pensions and benefits practice, and has a particular focus on multi-jurisdictional employment work. DLA Piper is a global law firm with 4,200 lawyers located in over 30 countries throughout the Americas, Asia-Pacific, Europe and the Middle East.
The information contained in this article should not be relied on as legal advice and should not be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought.
