Was this employer right to dismiss an employee for having a consensual encounter at work? Here are some key ethical and legal considerations to consider when office romances arise.

After a professor engaged in a consensual sexual encounter with a student, he was dismissed for having breached university policies. When the professor brought the matter to the Fair Work Commission, it found he had been unfairly dismissed.

The FWC came to this conclusion for two primary reasons, says Annamarie Rooding, Director and Principal of Principled Workplace Consulting, which were:

1. The nature of the encounter
   
   “The relevant policies required the employee to notify a supervisor of a close personal relationship,” says Rooding. “The Commissioner took the view that what happened between the lecturer and the student was isolated and fleeting and could not reasonably be characterised as a close personal relationship.”
2. The policies didn’t ban interpersonal relationships across the board
   
   “Employees were not permitted to be in a close personal relationship with a student where they were involved in the student’s supervision, assessment, teaching and the like. In this case, all of the final grades had been submitted. There was no effort to change them. Effectively, there was no capacity for the personal relationship to have influenced the student-teacher relationship,” says Rooding.

“If an employer feels strongly that even when they are not in the same team or reporting line, a relationship between people on different levels of the hierarchy is damaging to the reputation of the employer or damaging to the fabric of the workplace relationship, then they should make that clear in their policy.

“I think this was a problem for [the university] in this case because the FWC found the policies didn’t expressly prohibit the conduct that the university took issue with.”

After the dismissal, it also came to light that the senior academic was alleged to have behaved in a sexual manner with another student on a separate occasion.

The FWC ultimately found that some disciplinary action would have been appropriate, but that the encounter didn’t warrant termination.

“Part of that reasoning was that there was evidence that the student involved was a consenting adult, and had instigated or encouraged the intimacy,” says Rooding.

The FWC ordered the university to reinstate the professor and grant him six months’ backpay. 

A spokesperson for the university told HRM: “[We have] appealed the decision in this matter, and successfully obtained a stay of the reinstatement order while the matter is determined on appeal.

 “While the matter is before the Fair Work Commission, the university is unable to provide further comment at this point in time.”

In light of this case, HRM explores some of the legal and ethical questions around consensual relationships in the workplace.

When there’s a power imbalance

The reality is that many people meet their spouses at work. According to the ABC’s Australia Talks National Survey of more than 54,000 Australians, one third of respondents were most likely to meet a partner online, followed by 21 per cent through a friend, and 13 per cent said they met at work.

So few people are likely to take well to a blanket ban on office romances. 

“Employers should think about how they feel about the situation. Do they mind if somebody has a close relationship? If they do mind, under what circumstances? Is it across the board? Or is it only if one person has the power to control the fate of the other through performance management, promotion and the like?” says Rooding.

“My recommendation would be for organisations to think about the circumstances in which it would be problematic, and then articulate that in their relevant policy.”

See HRM’s article on creating a workplace relationship policy here.

However, employers should also be clear with their employees about what constitutes a conflict of interest, she says.

“Identifying whether there is a conflict isn’t just about whether there is an issue in the eyes of the people involved, but where there could reasonably be a perception in others that an actual or potential conflict exists.

“Sometimes perception is enough to cause damage. If there’s a perception of unfairness, or a conflict of interest, that is enough to cause a problem in an employment environment.”

There’s also increasingly closer scrutiny on relationships in the workplace.

“The public views consensual relationships between people with different levels of power – whether it’s a student-teacher relationship, or a more junior employee reporting to a senior manager – with a degree of concern. They question the appropriateness of that relationship,” says Chris Hill, Principal Solicitor and Founder of Stadium Legal.

No secrets to hide 

Although few people are likely to be on board with an outright ban on office romances, organisations are in a position to make clear stipulations about being notified.

“I don’t think many employers would be successful in arguing that an outright ban is fair, but employers are entitled to be firm on requiring disclosure,” says Hill. “They’re not banning it, they’re just saying they need to know so that they can take steps to make it work.”

For example, if two employees in a romantic relationship are in the same reporting line, one might be moved into a different team.

“That way they can continue the relationship, but there’s little risk of a conflict of interest coming into play where a manager gives someone a pay raise or preferential treatment because of their personal relationship.”

This helps to keep the employer out of murky legal territory.

At the end of the policy, they might include a statement such as: ‘Failure to comply with the policy may result in disciplinary action or termination.’

“Employees are still protected by unfair dismissal laws. So if you comply with the policy and tell them, and then you’re sacked anyway, you would potentially have an unfair dismissal case on your hands.”

Employers also need to create a disclosure mechanism that puts employees at ease.

We need to be realistic that people aren’t going to want to disclose at the very start of a relationship in a public manner,” says Rooding. “If we want people to be open about their personal relationships, there needs to be some sort of systematic disclosure mechanism, and that’s for all conflicts of interest. It could be an online form or another reporting channel, but it needs to be confidential and respect people’s privacy.”

What to do next

While employers can change a team structure (as already outlined above), they should be wary of how this is done, says Rooding.

“If you have a manager and a direct report who enter a personal relationship, and the decision is made that it’s not appropriate, so one of them has to move, employers need to be very careful about which person is shifted to avoid potential gender discrimination and other claims.”

For example, there could be a claim that a female employee has been subjected to sex-based discrimination if she is moved into a lower-paying role or into a department that isn’t in line with her professional focus and career goals.

With this in mind, you might consider leaving the team structure alone but approaching performance management differently.

“When decisions are to be made about performance, pay or promotion, somebody impartial needs to be brought in to make those assessments,” says Rooding.

Or there could be a peer review process in place, whereby another manager who works closely with both employees goes over and evaluates the performance management to ensure it’s been conducted objectively.

“Even if the parties themselves genuinely believe everything is above board and it’s all under control, from a perception point of view, it needs to be absolutely clear to everyone else that it is under control and that decisions are being made objectively.”

Regardless of the steps taken in response to an office romance, there should be some direct communication with the employee of higher authority, she adds.

“I would definitely be having a discussion with anyone who is in a more powerful or senior relationship to think about the other risks that they’re taking personally, because over time things can sour and what might seem fully consensual at the time can change. If you’re in a more powerful position, it’s possible someone might say you have abused that power.”

Risks to the employer

It’s not only the senior employee who is putting themselves at risk by engaging in a workplace office romance. Employers face risks too.

“If something troubling happens in the relationship, whether if, for instance, it was thought the relationship was consensual but it turns out it wasn’t because of the power imbalance, that can have serious consequences for a company’s reputation,” says Hill.

There are also ripple effects that can flow from a break up.

“If a long-term relationship ends, and all of a sudden you have two people on the same team who are going through an awful breakup [which is] very emotionally difficult for both of them, it could impact a team’s performance.”

The team might face difficulties working collaboratively if two of the team members have recently gone through a fraught breakup. Personal conflict can easily spill into the workplace.

This isn’t to say that relationships with a power imbalance should be viewed negatively or banned altogether, but particular caution does need to be applied so that the workplace can function as productively, safely and effectively as possible.

Office romances can bring up a range of ethical considerations. Sign up to AHRI’s course on Building an ethical workplace culture to help you navigate tricky ethical ground in the workplace. Book in for the next course on 20 June.