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Keeping everyone’s mind on the job in the workplace

THE saga concerning former US President Bill Clinton and Monica Lewinski captured public attention for months on end and occupied newspaper pages day after day.

While providing a wealth of salacious copy for journalists, the events also raised the debate about ethical and moral issues, and the impacts on both parties.

In the employment context, workplace liaisons raise a host of issues. The office romance is on the rise, with more people meeting their future partners at work. Many would argue that workplace romances are a normal, healthy thing. The positive effects can include increased individual productivity, work motivation and involvement, and improved work climate.

However, there are times where workplace romances can threaten organisational effectiveness. Issues that may need attention include appropriate standards of conduct in the office; issues about favouritism, lack of objectivity and perceptions of bias; questions about what confidential business information might be revealed during ‘pillow talk’; extensive use of email to further a relationship; and, inevitably, dealing with the romance gone wrong.

Most problematic for employers are the relationships that involve sexual relations in the office.

In a Tasmanian case, an employer who sacked an employee accused of having sexual relations in the workplace was found to have treated the employee harshly. The employer claimed the worker had sex while on duty. In fact, the alleged misconduct occurred at the workplace, but while the employee was off duty. The Tasmanian Industrial Commission focused on the effect on performance of work, and found that the sexual relations had no impact on the workplace whatsoever.

Certain kinds of employment involve the employee being placed in a position of special care or trust. Examples include teachers, university lecturers and tutors, health professionals, carers and counsellors. In these situations, employers are well advised to develop binding codes of conduct, which directly address the issue of sexual or other relationships between staff and (for example) students, clients or patients. Without these in place, employers may not be able to take disciplinary action against employees whose conduct is regarded as unacceptable.

A common fear when an office romance develops is what will be disclosed during ‘pillow talk’. These indiscretions can involve leaking confidential information about salaries, business performance and strategy, and confidential financial information. In one high-profile Australian case (involving an alleged wrongful dismissal of the director of finance and administration of a major company) it was claimed the employee had confided confidential business information to his wife, who then indiscreetly mentioned the details at a dinner party.

Another nightmare for employers can arise when romance goes wrong. This may be more manageable when the employees do not work in close proximity. However, if the former couple works near each other, or are in a reporting or operational relationship, the office dynamics can become unmanageable. Individual and team performance may suffer.

One of the greatest fears of employers is of being hit for a claim of sexual harassment when a relationship or affair ends (and sometimes, when it doesn’t end). In a Western Australian case involving a homewares store in Subiaco, a manager and his employee engaged in regular sex at the back of the shop on Thursday evenings after the store had closed. When the relationship ended, the woman claimed she had been sexually harassed. The case went before the Equal Opportunity Tribunal, where the manager succeeded in showing that the relationship had been consensual and the woman was a willing participant.

How should employers manage these risks? A range of strategies can be implemented. In the US, a recent development has been to draw up ‘love contracts’, where co-workers record that they “independently and collectively desire to undertake and pursue a mutually consensual and social and amorous relationship”. Under these (purportedly) legally binding agreements, the employees undertake not to sue their employer if and when the relationship breaks down.

An agreement like this might not be enforceable in Australia. Here, employers would be well advised to turn to a combination of policies, training and sensitive management techniques.

Great care needs to be taken in this area, where emotions ride high and there is a risk of overstepping the mark.

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