South Africa: Is Love Blind In The Workplace? Regulating Romantic Relationships At Work

Ordinarily, employers should not interfere with romantic relationships between employees in the workplace. However, it is also clear that these relationships can have a negative impact on the workplace and on how employees conduct themselves at work. Whilst it is not disputed that employees have a right to privacy, a balance must be struck between a right to privacy and the possible impact that a romantic relationship between employees may have on the workplace. Where a workplace relationship has a negative impact on the operations of an employer's business, the employer may be entitled to intervene.

The following are some of the circumstances in which issues may arise:

• Where a romantic relationship exists between two colleagues;
• Where a romantic relationship exists between a superior and a subordinate;
• Where one of the parties in a romantic relationship is in a position of influence over the counterpart's salary, bonuses, promotion, work division, etc;
• Where there is inappropriate conduct at work;
• Where a breakdown in a romantic relationship hampers productivity or creates a disharmonious work environment; or
• Where there is a duty to disclose a romantic relationship, but the employees in a relationship fail to do so.

To regulate situations such as the above, employers are increasingly looking for ways to manage workplace relationships. The introduction of a policy governing relationships in the workplace, or the incorporation of appropriate clauses into contracts of employment, would, where appropriate or necessary, enable employers to "set the boundaries" for such relationships and to ensure that the necessary steps are taken to safeguard a harmonious working environment.

Whilst some employers have introduced policies which specifically regulate romantic relationships in the workplace, the implementation of principles and guidelines to govern workplace relationships need not necessarily be included in a standalone policy but can be integrated into existing policies, where applicable. Many employers have codes of conduct or policies that deal with topics such as sexual harassment and conflicts of interest, and these policies may be amended to incorporate appropriate measures that regulate romantic relationships in the workplace adequately.

Interestingly, the Labour Court expressed the following view on workplace romances in the decision of Rustenburg Platinum Mines Limited v UASA obo Pietersen and Others:

"A workplace is exactly that and should not ordinarily be confused with a 'find me love' sanctuary or lonely hearts' club for love-sick employees. I agree with the Commissioner's observations that there is nothing wrong with employees being attracted to each other at the workplace. After all, we are all part of Homo sapiens with feelings and emotions, and it is possible for the office affair to turn into a 'happily thereafter union.' There is a school of thought that holds the view that human beings can be slaves to their urges. That being so, it does not imply that employees are incapable of controlling those urges in the workplace. A workplace should be free from 'amorous' and testosterone-filled employees looking for love and gratification at every available opportunity. There is everything wrong when employees express their affection in the workplace to each other, to the point where the conduct in question is frowned upon, as it crosses that fine line between innocent attraction and sexual harassment."

This perspective suggests that employees should be discouraged from expressing any affection towards each other in the workplace, particularly where the relationship is between senior employees and their subordinates.

From a practical point of view, an outright prohibition on romantic relationships in the workplace incorporated into a policy or contract would generally not be the solution, nor would it typically hold muster in the realm of a fair workplace practices. An important question that then arises is what measures can be implemented in the event that workplace relationships are negatively affecting the work environment?

Clear guidelines should be set to regulate and govern romantic relationships. These could include:

• When a romantic relationship must be disclosed and to whom;
• What steps will be, taken if there is a romantic relationship between a superior and a subordinate, or where one of the parties to the relationship could have influence over the other's bonus, salary increase, disciplinary measures, etc.;
• The type of conduct in the workplace that can be expected of employees that are parties to a romantic relationship: and
• When a breach of a policy may result in disciplinary action.

Employers will need to navigate each case on its own merit, paying particular attention to the effect of the consensual relationship on the workplace. It may become necessary to transfer an employee to a different division or department, change their duties or change a reporting line in order to accommodate the consensual relationship whilst maintaining a professional and comfortable workplace for all employees. If an employer decides to take any of these measures, it should be careful not to favour one of the parties over the other.

An employer may consider taking disciplinary action for breach of a policy. Further, instances of incompatibility (i.e.an inability on the part of an employee to work in harmony either within the corporate culture of the business or with fellow employees) may also arise.

An employer may also have to take particular care where a relationship comes to an end. An act that was acceptable in a consensual relationship may become inappropriate or even create the possibility of a sexual harassment allegation. The failure of an employer to take appropriate action in these circumstances may lead to it being held liable in terms of section 60 of the Employment Equity Act.

While this may be desirable for employers, it is often difficult to keep employees' private and work lives wholly separated. Employers should consider setting appropriate guidelines for romantic workplace relationships. This will not only be important for clearly defining what is expected of employees but will assist in mitigating any risks and harm that can be caused by romantic workplace relationships.

Reviewed by Peter le Roux, an Executive Consultant in ENS' Employment Practice

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.