2017 was the year of sexual harassment scandals and the trend looks to continue into 2018. From the most infamous involving powerful Hollywood producer, Harvey Weinstein to allegations involving our own Australian television royalty, Don Burke; the media coverage is insatiable. A common theme with these allegations is that many of the victims only felt comfortable speaking out now after years of silence, which may indicate society’s tolerance for such conduct has waned. Conduct that might have been swept under the proverbial rug 20 years ago won’t be tolerated today. With this shift in attitude, even consensual workplace relationships are under scrutiny particularly romances involving senior employees.
Reports suggest 50% of working people will participate in an office romance at some time in their careers, with odds greatly increased for those working in hospitality and tourism. The challenge for employers is to ensure workplace attractions do not lead to incidents of sexual harassment.
So what should employers do to prevent office romances from becoming a problem for the business?
Prevention
The old adage “prevention is better than the cure” rings very true in sexual harassment cases. You need your employees to understand the business’ stance on workplace relationships and sexual harassment. This is most easily achieved with clearly drafted policies and procedures and training and development of your employees in this area. It is also important to provide channels for employees to lodge complaints so you can stay on the front foot if there are any breaches of your company policy.
Preventative measures must come from the top. Senior executives need to lead by example so your message is consistent through all areas of the business.
Tip 1: Set the ground rules: Consensual Relationships
As an employer, you can’t prohibit your employees from embarking on an office romance. You can, however, set ground rules as to how office relationships are managed. While it may seem like a private matter, if the two lovebirds work in close proximity then the relationship has the potential to adversely affect the workplace.
We recommend that employers have a clear policy on workplace relationships and provide training to employees on the policy at regular intervals so they are aware of their obligations and the consequences of non-compliance. Your policy should require employees to disclose workplace relationships either to HR or management. This ensures you are in a position to identify and deal with the number one concern with a consensual relationship: a potential conflict of interest.
Conflict of interests are more likely to occur when one employee in the relationship has the potential to influence the working arrangements of the other. For example, where the relationship is between a manager and a subordinate.
When confronted with a potential conflict of interest situation, the appropriate solution will depend on the size of your workplace and the nature of your operations. However, outcomes to consider include changing reporting structures, reassigning tasks/ roles or implementing other mechanisms to avoid an actual conflict or the perception of conflict, which is just as damaging in a group dynamic. This may involve a review of the employee’s employment contract to see if such changes are provided for. You should also be clear about the consequences of failing to disclose a workplace relationship, which may involve disciplinary action including termination of employment.
Tip 2: Be clear about unacceptable workplace conduct
The fact that two individuals have been in a consensual sexual relationship does not mean that sexual harassment may not occur following the end of the relationship. Employers need to be clear about the business’ expectations in relation to behaviour that it will not tolerate including sexual harassment, which is not only undesirable conduct but also unlawful. This is especially important because it is not just individuals that are liable for conduct amounting to sexual harassment. Employers can also be held vicariously liable for the actions of their employees. There is an exception to this if the employer establishes that it took all reasonable steps to prevent the employee from engaging in the alleged conduct. A well drafted sexual harassment policy that your employees are trained in, acknowledge and understand goes a long way to relying on this defence.
What is sexual harassment?
Sexual harassment is any unwanted or unwelcome sexual behaviour where a reasonable person would have anticipated the possibility that the person harassed would feel offended, humiliated or intimidated. Applying this definition, sexual harassment is not consensual behaviour or mutual attraction. Employees need to be aware, however, that just because there was once a mutual connection, if that is no longer reciprocated then any unwanted attention has the potential to become sexual harassment.
Tip 3 – Have Multiple Complaint Channels
Be curious. I am not suggesting you rush to read the “15 Tell Tale Signs that your employees are having an affair?” which describes “both looking great” and “not seeming to get any work done” as two key things to have on your office romance radar (yes, this article really does exist). If you are clear about your disclosure expectations and no conflict of interest exists then let the consenting happy couple continue on their merry path.
However, you need to (and should want to) know about any non-consensual situations so you can eradicate the behaviour. Every business needs to have a detailed grievance procedure that allows for the escalation of the complaint if the employee is not satisfied about the response. Be clear about who in your business will be responsible for dealing with such grievances and ensure that they are adequately trained. Just because someone has the title of Manager doesn’t mean they know how to handle potentially sensitive complaints in the best manner.
Businesses may want to explore confidential hotlines as a mechanism for uncovering untoward behaviour. This is a good way of providing an avenue for employees who find the traditional grievance mechanisms confronting. For example, in response to the allegations surrounding Don Burke, Channel 9 set up a hotline where employees and former employees can report past abuse.
Tip 4: Get the investigation right
It is important to have a clear and unbiased view of the events that took place. This can quite often be achieved through an internal investigation conducted by your HR team. In some circumstances where the allegations are numerous and serious and have the capacity to cause the employer severe reputational damage, it may be prudent to outsource the investigation. Outsourcing to a legal professional preserves legal professional privilege over the investigation report. This means you can have a “warts and all” account of what went on without having to disclose this report in legal proceedings, which means you can deal with any identified problems swiftly and confidentially.
Summary
We’ve seen a dramatic increase in compensation awarded to victims of sexual harassment within the workplace. There is a clear link between the approach the Courts are willing to adopt and community standards.
Community standards are such that this type of conduct will not be tolerated. Businesses need to be mindful of not only the legal consequences but also the effect negative publicity can have on the company’s reputation. With a new sexual harassment scandal coming to light nearly every day, businesses must understand the possible risks and focus on preventative solutions.
If you have any enquiries, please contact Bianca Seeto on (07) 3046 2100 or bls@fcbgroup.com.au
