We spend a great deal of time with our colleagues and sharing the highs and lows of working life means that we often form strong bonds with them. So, relationships are bound to develop, be they fleeting fancies, long-term dating, illicit affairs, or something that leads to wedding bells.
However, in the wake of #MeToo, romantic relationships are increasingly discussed in the language of power, and a “power imbalance” between the participants in a relationship is almost uniformly understood as being bad. How power is defined in each case is a little murkier and the problem is that it is never entirely clear whether the other person in the relationship objected to its existence.
If someone is a direct supervisor, the power dynamic is pretty clear. But what about colleagues? Or a relationship with someone who has a more advanced position but does not directly control your employment status? Or at a university, what about a professor in one department in a relationship with a student over the age of consent in an entirely other department? What is the equation that will tell us how to add and subtract all the differing levels of power for every relationship?
Further, is it the employer’s business anyway? The Human Rights Act 1998 enshrines in domestic law the right to respect for private and family life. While this is subject to interference by public authorities in certain circumstances, an outright ban on romantic involvement is unlikely to be proportionate (other than in very limited circumstances, such as for operational roles in the military). After all, how much power over our private lives do we want to give to our employers?
The Easterbrook affair
Steve Easterbrook, who was the CEO of McDonald’s, was fired last week after it was discovered that he was having a consensual relationship with a company employee.
Details about the relationship and how it originated and how they were conducted remain scarce. We do not know how it arose, but there is a clear difference in the respective power within the Company, between those involved.
In any event, it looks bad, doesn’t it? We’ve seen it so many times, it’s almost a cliché: the CEO leering at the secretary; the powerful boss dangling the promise of a promotion in exchange for a sexual relationship.
Given how widespread harassment at work is, his dismissal could be seen as a sign of improvement – an indication that organisations are finally taking a zero-tolerance approach to abuses of power? Right?
McDonald’s has said his relationship “violat[ed] company policy”, but the specifics about that policy have not been released. Even without knowing the details, the conflation of romance with harassment is strange, given how many people report meeting a romantic partner through work. And while there are issues with mixing business with pleasure, it would be a better use of a company’s time to address the real cases of harassment in their workplaces rather than hope it all goes away with a strict blanket ban on relationships.
What should businesses do about it?
The collision between the private and public lives can be problematic from a management perspective and having individuals who are involved in a relationship working alongside each other presents various legal and practical concerns for employers.
Perhaps surprisingly therefore, is that there are no general legal rules preventing or governing relationships at work.
No grey area allowed
Many employers are now seeking to regulate personal relationships in the workplace. A growing number of companies have decided to turn greys into blacks and whites with flat “no relationship” policies. In particular, many companies now forbid relationships between an employee and someone in their chain-of-command, while other companies are banning relationships of any kind between employees.
A policy which sets out what the employer expects in such situations is likely to be the best defence against future problems.
Without any relevant policy or rules in place to cover the situation, the mere fact of a workplace relationship will not be a reason to discipline an employee, although inappropriate behaviour linked to the relationship may be.
Where there is a relationship at work policy and this is breached, an employer will have a potentially fair reason to discipline staff.
A relationship at work policy can assist an employer by setting out the expected standards of behaviour and providing a framework for managers when dealing with such situations. Staff must know and understand what is and is not acceptable behaviour.
Regardless of whether a policy is in place, Employers and Employees will be acutely aware that any workplace relationship can lead to gossip; envy and potentially negative impact on morale and atmosphere. It is easy to predict that co-workers may believe that such connections will influence promotions; pay raises or redundancies unfairly; or may impact confidentiality.
If a policy is adopted covering workplace relationships, this should work alongside and complement the employer’s policies on Anti-harassment & bullying; whistleblowing; and Equal opportunities.
Should companies have other priorities?
Enforcing such a policy requires consistency, openness and fairness, and does not resolve all the difficulties and risks employers face.
It is increasingly common for organisations to express their blanket ban on workplace relationships using language of protection, presenting themselves as benevolent figures only interested in the safety of their workers. This is a bit obvious and many workers, of any gender, are likely to assume that they actually are more interested in reducing their own liability.
Therefore, in contrast to a blanket ban, a more nuanced approach requiring staff simply to disclose a workplace relationship so that an employer can take pre-emptive steps to avoid conflicts of interest, for example, by changing reporting lines, stands a better chance of being upheld.
Further, for most organisations, it would be a better use of their time to address the real cases of harassment in their workplaces rather than hope it all goes away with a strict ban on fraternization.
Rather than regulating the interpersonal relationships of its employees, perhaps corporations would be better served developing and implementing real structural protections for its employees. Going after “problematic” relationships one by one only serves to improve the company’s image while doing nothing particularly for the vast majority of the people in its care.
Whatever McDonald’s policy about romantic relationships is, it doesn’t seem to help the vast majority of its workforce. A blanket ban on consensual relationships makes no difference to this issue and neither does the dismissal even of a CEO.
Last year, McDonald’s employees participated in a nationwide strike to protest the lack of company protection against sexual harassment in its franchises. Since then, dozens of women, the majority based in the USA, have filed claims against the company for failure to act against harassment and retaliation. Women reported having their hours cut after turning down a manager’s advances, of facing violence and assault, and of being forced to work in environments of intimidation.
Sadly then, it appears that McDonald’s, like many other Employers, has still not put in place policies that would protect workers and give clear guidance for someone trapped in a hostile work environment.
This article was written and researched by Albert Bargery, Solicitor at our Isle of Wight Office. Albert advises employers and employees on the Isle of Wight and throughout the UK. You can contact Albert by email: [email protected]
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