Where does the law stand on workplace relationships?
Even if you are not working in Canberra, this may be important for you to read!
In light of the recent Barnaby Joyce relationship scandal, many people are wondering what the law really says about sexual relationships between colleagues. According to Relationships Australia, about 40% of Australians aged 35-50 met their current partner at work, meaning this issue affects a large percentage of people.
Statistics from May 2017 reveal that 60.3% of all employed Australians work full time. We spend a lot of time at work, and with such long hours, lengthy to-do lists and often stressful environments, emotions are running wild, arguably making office romances inevitable.
As much as a relationship with a colleague may seem like a good idea, the stakes are high. A workplace relationship gone wrong has the potential to end in a legal claim made against you.
Here’s what to be mindful of:
Just because two consenting adults have been, or are in a relationship, it does not mean that sexual harassment will not occur after the relationship has ended or even during the relationship.
Sexual harassment is defined in the Sex Discrimination Act 1984 as being an unwelcome sexual advancement or an unwelcome request for sexual favours, either verbally or in writing. Sexual advancements will be deemed unwelcome if an ordinary person would anticipate the possibility that the advancements would result in humiliation, offence or intimidation to the person being harassed. This means that it doesn’t have to be certain that someone may be humiliated by the advancements, just a possibility is enough.
Various circumstances are taken into consideration, namely age, sex, marital or relationship status and the relationship between the harasser and the person being harassed.
You may be surprised to learn that following a claim of sexual harassment, the employer of the harasser may be held liable for their employee’s actions. This is called vicarious liability and is covered by section 106 of the Sex Discrimination Act 1984. If an employee does an act in connection with their employment that is unlawful, their employer may be held liable for their actions. This principle applies even if you’re engaging in after-hours work-related activities or functions such as work Christmas parties, after work drinks or work-related travel.
Right to Privacy:
According to the Australian Fair Work Ombudsman, people have the right to keep certain personal information to themselves. Personal information includes all information that can identify you – ranging from your bank account details, credit history and even photos. Personal information can extend to information about what you like, where you work, your political opinions and sexual orientation etc.
Employees are entitled to a private life after work hours that their employer does not have the right to know about or interfere with. In light of this, however, it’s important to keep in mind that if your behavior after hours impacts on your employer’s confidence in your ability to perform your job adequately, or even if your actions have the ability to tarnish the reputation of your workplace, your employer may still have the right to know about it.
In terms of workplace relationships, if your relationship with a colleague gives your employer reason to question your ability to perform your professional duties, they may have the right to know about it.
If you are working for the Government, the Privacy Act 1988 may apply to you. Otherwise you should refer to what your workplace’s policies are regarding relationships between colleagues. Your contract may also stipulate regulations in respect of workplace relationships, such as a duty of disclosure.
Conflict of Interest:
Another issue that relates to relationships between colleagues is the possibility of a conflict of interest. This can occur if two colleagues are in a relationship and one of them is responsible for the promotion or appraisal of the other, for example. If you find yourself in this situation, it is best practice to refer to your workplace policies and the terms of your employment contract to see what may be required of you in terms of disclosure of your conflict.
Whilst workplace relationships aren’t illegal, they can result in unpleasant consequences such as a claim of sexual harassment. In respect of an employer’s right to know about relationships between their employees or the employees’ duty to disclose such a relationship, it ultimately comes down to whether the workplace has policies surrounding the issue, or if there are terms in the employees’ contracts about it.
If you or someone you know is having difficulties regarding any issue in relation to a workplace relationship, please do not hesitate to contact Lynn & Brown Lawyers for expert advice.
About the authors:
This article has been co-authored by Chelsea McNeill and Steven Brown at Lynn & Brown Lawyers. Chelsea is in her third year of studying Law at Murdoch University. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.