Employees spend most of their lives at work. So it is not unlikely that they may start to develop intimate relationships with each other. They have a right to privacy, but as soon as those relationships start having an impact on the business, the right to privacy becomes diluted.
So it is only when the relationship has a negative effect on the operation of the business that an employer can interfere and take certain disciplinary steps.
Below are three common scenarios of workplace romance and an outline of what steps can be taken in each case.
Scenario 1: An employee has an affair with the CEO’s wife
This actually happens! In this scenario, believe it or not there is no misconduct involved. The employee can be charged with stupidity yes, but not misconduct.
Here the CEO and the employee will need to have a one-on-one meeting to try and resolve the matter.
If the CEO cannot continue working with the employee, it is suggested that the CEO propose a ‘termination by agreement’ to the employee. This will be where the CEO suggests to the employee that they end the employment relationship. This will involve no money other than payment in lieu of notice.
If the employee does not accept this, the CEO should give the employee notice of termination on the basis of incompatibility.
Incompatibility would be where the employee is not able to work in harmony either within the corporate culture of the business or with fellow employees.
The employee’s conduct could be the cause of incompatibility in the workplace.
An adulterous relationship is not necessarily grounds for instituting disciplinary action against an employee. Employers need an operational, not a moral reason to take disciplinary action.
Scenario 2: Co-employees become intimately involved
In this situation there would be no reason to intervene. However, if the relationship impacts on the working environment then the employer has the right to intervene.
For example, the employees may behave inappropriately at work, or personal conflict could flow over into the workplace. The employer does not have the right to expect the employees to end their relationship, even where it has a negative impact on the workplace. This would be an invasion of privacy.
In this scenario the employer would use less restrictive means to maintain discipline and protect its interests. It would be advisable to resort to disciplinary action instead of dismissal. The employer could charge the employees with misconduct, alleging that there is a workplace rule prohibiting inappropriate and intimate conduct in the workplace. However, the employer must make sure it has a ‘do not fraternise’ clause in its employment contracts.
Improper conduct can justify disciplinary action but expecting employees to end a relationship would be an invasion of privacy.
Another possible option is that employees could be moved out of the same department, if this is feasible. But here again, because it is changing the conditions of employment, the employer needs to get the employees consent.
Scenario 3: Spouses determine one another’s duties, salaries etc.
In this situation there would be operational issues, giving the employer the right to take action. The employer could move the employees into different departments to avoid any future conflicts of interest. It has to be made sure that they agree to change their conditions of employment.
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