Just as John, the President of a medium-sized company, is leaving his office, Cyndi from sales slips into his office and shares this news:  Elaine, the over-achieving Sales Manager and married mother of two, has been having an affair for the last 6 months with Randy, her most recent hire, who is 12 years younger. According to Cyndi, although they are trying to hide it, “everyone” on the sales team of seven knows and some of the senior sales reps have been talking about how Randy seems to be getting more than his fair share of the juicier new accounts.  Although Cyndi “just wanted to let you know”, John is shocked, particularly as he and his family regularly socialize with Elaine’s husband and children.

As John drives home, his mind is racing:  Shouldn’t Elaine have told him about this? Can he fire her to express his personal disgust at her “cheating”? Can he tell Elaine to stop? Or take further disciplinary action if she does not?  What about Randy’s role? 

If you, like John, are confused and cannot provide simple answers to those questions, then you are not alone. In fact, workplace romantic relationships put employers in a classic Catch – 22:  while they generally have no right interfering in the love lives of their employees, they are expected to protect employees from sexual harassment in the form of unwanted overtures or acrimonious break-up behavior.

On the one hand, the law recognizes that employees generally cannot be disciplined for activities, including romantic relationships, outside the workplace and even when involving co-workers.  If John wants to immediately terminate Elaine, the courts would likely find she is entitled to contractual severance.  If two employees are living “common law” together, they are protected from discipline or termination under the Human Rights Code, which bans discrimination based on “family status”.  The only exception is where the employer can show a “bona fide occupational requirement” justifying action.

On the other hand, there are volumes of cases in which employer have been held liable for the unwanted romantic overtures of a manager to a subordinate, or even between co-workers if known to the employer.  Human Rights Tribunals stress the “inherent power imbalance” when a manager like Elaine initiates sexual or romantic advances and have found cases of apparently consensual relationships to be sexual harassment.  Other cases emphasize that employers need to be vigilant in protecting the jilted lover employee who does not accept that “it’s over”.  So John needs to ensure Randy does not feel pressured to date Elaine.

So what rights does an employer have to manage the hazards of workplace liaisons?  Employers can and should have a policy to manage the risks.  Some employers ban all relationships between managers and subordinates. A more realistic policy is to warn employees about the risks of unwanted romantic overtures and that “no means no”, particularly between a manager and an employee reporting to that manager.

Employers are permitted to require all employees who start any kind of personal relationship to report it confidentially to an appropriate person, such as the HR Director.  Although the courts might well find this is reasonable to expect even in the absence of an explicit policy, a policy makes that requirement clear.  Employees who work in the same location, the same department or who interact in business should all be covered by the obligation to report.  In our case, both Elaine and Randy should have said something.  Although their failure to do is not necessarily grounds for dismissal, if John asks them and they (falsely) deny it, case law indicates this is further grounds for discipline by reason of the dishonesty.

When a relationship is discovered or reported, the employer needs to consider all the circumstances, including whether the relationship creates a conflict of interest or a reasonable suspicion of bias and whether, in manager/subordinate relationships such as Elaine and Randy’s, there is any evidence of pressure or lack of consent.  The employer has the right to impose changes in job roles or reporting relationships, but is well-advised to consult all affected parties and experienced legal counsel, before dictating that one employee change jobs or location or, in extreme cases, leaves the company.

Even if the employer takes appropriate steps to protect against conflict of interest, the employer is well advised to keep an ear to the ground about state of the relationship.  Many of the most sensational cases involve employees who, after a break-up, either wreak revenge on their former lover in the workplace or harass them with unwanted attempts to rekindle the flame.

While many managers who have read this far must be thinking the best policy of all would be one banning all personal relationships, this is simply not realistic or legal.  The best practice is to work with an experienced employment lawyer to develop and communicate a policy which:

• defines the employees’ obligations to disclose relationships;
• describes unacceptable conduct e.g. repeated unwanted requests for a date; and
• warns of the possible need for changes to work around a relationship and sanctions for non-compliance with the policy.