déc. 16. 2019

Love at work: considerations for employers in managing office romances

Abrams v RTO Asset Management, 2019 NBQB 129 (CanLII)

Office romances are nothing new. Many people have, and will likely continue, to meet their partners at work. In recent months, however, and in the wake of the #MeToo movement, office relationships have become something of a hot topic.

As widely reported in the media, McDonald’s CEO was fired for having a consensual relationship with an employee. Moving north of the border, a senior executive from Toronto-based asset management firm, BlackRock Inc., suddenly resigned under similar circumstances early this month.

In both cases, the employee lost their job not for becoming involved in a relationship with a co-worker, but rather for failing to comply with company policy. In the case of McDonald’s, reports indicate that the company has a strict written policy that prohibits managers from having relationships with direct or indirect subordinates. At BlackRock, the executive failed to report the relationship as per his employer’s “Relationships at Work Policy”.

While office relationships may be relatively common, they can pose significant problems for employers. For example, where a manager is in a relationship with a subordinate, there is the potential for abuses of power, conflicts of interest and/or favouritism. Even where the employees involved may be mindful of this risk, the perception of such issues from colleagues can harm morale and lead to inter-office conflict (which in of itself can harm productivity and warrant intervention).

Employers should instead look to strike a balance that acknowledges the realities of workplace relationships while mitigating potential risks. Put differently, rather than ban relationships, employers should instead focus their efforts on addressing the specific concerns that may result from a workplace relationship.

Put in place a written policy

The first step for employers is to formulate and put in place a clear written policy that sets out:

  1. To whom the policy applies
  2. The responsibilities of various parties pursuant to the policy (i.e. employees, managers, the union);
  3. The purpose of the policy (to manage operations in a way to mitigate the real or potential risk for abuse of power, conflicts of interest and/or favouritism); and
  4. The repercussions for failing to meet policy requirements.

Employers may wish to consider cross-referencing their workplace anti-harassment policy, where appropriate. Beyond that, it is critical to ensure that every staff member receives a copy of the policy and signs off on having read and agreed to abide by its terms.

Institute a duty to report

In both the McDonald’s and BlackRock cases, the employees found themselves in trouble because they failed to report to their employer that they had entered a consensual relationship with a co-worker.

As part of any office relationship (or fraternization) policy, it is important to make staff responsible for disclosing when they enter a workplace relationship. Ideally, there should be a mechanism to ensure that this process is confidential and the reporting employee(s) are treated with respect. A practical effect of the duty to report may also be that it forces employees to think more carefully about entering into office relationships and to pursue such relationships in a professional manner.

Apply the policy consistently

This may sound obvious, but as with any other policy, it is critical for employers to apply and enforce the policy uniformly and consistently. One of the interesting (and unintended) results of an office relationship policy is that it may lead to an employer becoming aware of their employees’ sexual orientation. This can add an additional layer of complexity, and it will be even more important that such information is held in confidence and that the employer provides no basis for the employee to believe that he or she is being treated differently (or penalized) under the policy as a result of their sexual orientation.

Applying an office relationship policy in a consistent manner may require, from time to time, that an employee found to be in breach of the policy is dismissed (whether with or without cause). Such decisions may be difficult to make, particularly where (as in the BlackRock case) the employee is considered a star performer.

Breach of policy results in termination for cause

Finally, in a recent case from New Brunswick, Abrams v. RTO Asset Management, a long-serving manager was dismissed for cause for failing to report to his employer a sexual relationship in which he was engaged with another employee.

Prior to dismissing the employee, the employer conducted an investigation that uncovered: the existence of the relationship; the fact that the employee was improperly providing his lover with information about company-related events; and that the employee had lied when questioned about the relationship.

In response to being fired, the employee brought a claim seeking damages for wrongful dismissal. The Court, however, rejected this argument. It instead sided with the employer, noting that the employee had deliberately placed himself in a conflict of interest and acted dishonestly when questioned (thus irreparably damaging the trust necessary to an ongoing employment relationship).

As office romances seem inevitable, it is best for both employers and employees to approach them in a realistic, honest and pragmatic manner. Employers should look to institute, and consistently enforce, clear written policies focusing on avoiding the real or potential risk for abuse of power, conflicts of interest and/or favouritism. Employees, on the other hand, should be mindful of their workplace obligations, and be forthright and professional in their dealing with the employer and their colleagues.

This article was originally published on December 13, 2019 on First Reference Talks.