The Legal Do’s and Don’t’s of Office Romance
February 5, 2020 By: Dana Du Perron Read Time: 3 minutes
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With January behind us, we can look forward to February, which means one thing: love is in the air! With Valentine’s Day just around the corner, finding someone to couple up with might be on your radar. But what if that special “someone” is a colleague? What are the do’s and don’t’s of office dating?

A clear policy setting out what is expected of employees when they enter into consensual relationships can help alleviate concerns.

In consensual relationships, no legislation or common law rule prohibits office romances. For employees who are at the same level, a relationship is typically less concerning to employers, unless the relationship (or its breakdown) starts affecting the workplace, in which case, various issues may arise. For example, there may be performance concerns that require documentation or discipline, or an employee might suffer mental health issues related to a breakup that could trigger an employer’s obligation to accommodate.

That said, concerns can arise where there is a power imbalance between the members of a couple. Where a boss and a subordinate are in a relationship, it can raise concerns about perceived preferential treatment or breach of privacy/confidentiality obligations. A simple perception of such issues, even if unfounded, can cause problems for staff morale. Such concerns may arise even where there isn’t a direct reporting relationship, as high-level employees usually have more sway and ability to impact to decisions with respect to the lower level staff member. Furthermore, questions sometimes arise as to whether a relationship between a boss and their subordinate can truly be consensual, given the power imbalance, and the pressure the subordinate may feel to engage in the relationship or risk harm to their career. These issues can, and should, be very concerning to employers.

So what can be done about it? A clear policy setting out what is expected of employees when they enter into consensual relationships can help alleviate some of these concerns. Such a policy should address when a relationship must be reported and to whom, and address how conflicts of interest, or perceived conflicts of interest will be managed (for example, clearly stating there can be no reporting relationship between the members of the couple). The policy should also set out that discipline will flow from a breach of the policy. In applying the policy, companies should be mindful of not treating the higher-level employee more favourably than the lower-level employee. Indeed, the higher-level employee should likely be held to a higher standard.

For employees, awareness of applicable policies and complying with them is important. Failure to do so can result in discipline up to and including termination (keeping in mind that termination “for cause” is still the “capital punishment of employment law” and breaching a policy will not necessarily be grounds for termination for cause). If asked about a workplace relationship where the concerns outlined above exist, be honest with your employer.

To be absolutely clear, we are talking about consensual relationships here, and not situations such as unsolicited sexual advances. Those types of advances may amount to harassment or sexual harassment, which is prohibited by the Occupational Health and Safety Act (“OHSA”) for provincially regulated employees, and the Canada Labour Code for federally regulated employees. Employees should report such conduct if it causes them concern in any way, and employers should take steps to investigate and address such conduct if it comes to their attention. These pieces of legislation also place obligations upon employers related to domestic or family violence, which employers should be aware of.

Because there is no legislation or common law rule that disallows office romances, it is important for employers to have a clear office policy which can be drafted with the help of an experienced employment lawyer. If you are an employee who has started or is in an office relationship and unsure of your if it aligns with your workplace policy, an employment lawyer can help you understand the expectations of your employer.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2020 Nelligan O’Brien Payne LLP.

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