Office romance: How to handle the organisational risk

Garreth Hanley:
This is INTHEBLACK, a leadership, strategy, and business podcast brought to you by CPA Australia.

Belinda Zohrab:
Welcome to the INTHEBLACK podcast. I'm Belinda Zohrab, regulation and professional standards lead at CPA Australia. In this episode we're talking about a topic that's often whispered about but rarely unpacked in full: Workplace romance. Romantic relationships in the workplace are nothing new, but they can raise complex questions around professionalism, power dynamics, ethics and even legal risk.

Joining us today is Jodie Fox, an honorary senior fellow of the law school at the University of Melbourne and director at WorkLogic, a consultancy firm that works with employers to build a positive work culture. WorkLogic is a market leader in workplace investigations, reviews and training, and works with employers across Australia with offices in Melbourne, Sydney, and Perth. Jodie brings deep expertise in workplace conduct, policy and conflict resolution.

Today we'll explore why office romances happen, how organisations can manage them responsibly, and what professionals need to know about boundaries, disclosure and the legal obligations employers face, especially in light of sexual harassment laws and evolving workplace norms. Welcome to the podcast, Jodie.

Jodie Fox:
Thanks very much, Belinda. Thanks for having me.

Belinda Zohrab:
So let's start with the basics. Can you tell me, why do romantic relationships tend to form in the workplace? And what does that say about our modern work culture?

Jodie Fox:
I think romantic relationships happen in the workplace because people are in the workplace. And so we spend a lot of our time at work. We tend to be working with like-minded people who are interested in the same sorts of things as we are interested in. We tend to have the same sorts of backgrounds, perhaps, that they have. So it's not unusual or not surprising that people become attracted to each other at work and that they might start romantic relationships.

Actually, the number of romantic relationships at work has actually decreased over the last decade or 15 years or so, and that's usually put down to the rise of internet dating and people being able to find like-minded people online. But workplace romances are still definitely alive.

Belinda Zohrab:
I know, traditionally, organisations were reluctant to proactively address office romance. Is it seen as slightly taboo or maybe problematic, or even gossipy, perhaps? And if that's the case, is this view changing?

Jodie Fox:
Yeah. I think that workplaces and employers have probably quite rightly thought that their employees' personal lives are something that they'd prefer not to get terribly involved in and that the employees are entitled to a private life. But yes, it is changing, and that's because of the way in which workplace relationships are seen within various kind of legislative contexts that have been changing over the last five years or so.

There's been a real, almost a tectonic change in the way in which employers are expected to manage risk coming out of workplace behaviours, such as sexual harassment or bullying or other kinds of psychosocial risk. There's been a real change in the way in which the legislation lays down the pathway for employers to look at the kinds of risks that are caused when people are in a relationship together at work.

And so I think that, while employers may still have that need or desire to not want to meddle too much in their employees' personal and private lives and a respect for their private lives, I think an employer that understands the legislation and understands the regulatory framework understands that workplace relationships are absolutely part of the potential risk that they need to manage at work. And so they do need to be starting to take steps to identify and manage risks that arise in workplace relationships.

Belinda Zohrab:
So would you say an organisation having a strong understanding of the law around this area would help them strike the right balance between respecting personal relationships and managing professional boundaries?

Jodie Fox:
Yes, absolutely. And it's really coming down to understanding, what is it that I'm actually... Where is my interest as an employer in this relationship? And you're right. It's not about the gossip or the prurient sort of interest in who's having a relationship with whom. It's more about understanding, what are the risks that arise out of this relationship? And how do we manage them?

So for example, if we're looking at a relationship between a manager and their direct report, and that manager is responsible for bonuses and signing up on pay rises and promotions and all those sorts of things for their direct report to whom they're in a relationship with, then there's a clear conflict of interest there. And that is something that the employer needs to get involved in and start to manage.

In general, the way in which people are behaving at work, and particularly at the beginning and the end of romantic relationships are areas of risk for sexual harassment, and the positive duty to prevent sexual harassment. So the legislation that has come in in a number of tranches through the Sex Discrimination Act and through the Fair Work Act over the last three to five years has meant that employers need to understand the risks that are involved that might give rise to sexual harassment in their workplace, take steps to mitigate those risks, and monitor the risks, and continue to try to either eliminate or mitigate the risk that gives rise to sexual harassment.

Now, we know that one of the key drivers or one of the key risks for sexual harassment at work is at the beginning or the end of a romantic relationship. So sexual harassment occurs where one person, for example, is sexually interested or romantically interested in another and the other person isn't and the first person perhaps oversteps the line when it comes to trying to convince the person to be in a relationship with them.

Sexual harassment also occurs at the end of a relationship. And so where there has been a sexual relationship or a romantic relationship that's been completely consensual and it's broken down but there's behaviours at work that continue, that can well be sexual harassment. And that's when we see some of these cases in the federal court where people have been sexually harassed, particularly where there's a power imbalance and where employers are liable for significant damages for those employees who've been sexually harassed.

So it absolutely is something that is every employer's business. They need to understand what the positive duty to prevent sexual harassment is. They need to understand where the risk lies, and they need to be not afraid to have the conversations that they need to have with employees about this stuff, because it's not prurient. It's sensible risk management by employers.

Belinda Zohrab:
Understanding these particular areas of risk and particular moments of risk from an HR or leadership perspective, what kind of policies or guidelines should be in place to manage these office romances responsibly?

Jodie Fox:
I think there's been two parts to that. One is the conflict of interest that I touched on before. Any circumstance where you've got a manager and their direct report involved, or even a manager and someone in their line of report involved in a romantic relationship, you have a potential conflict of interest. Either a real conflict of interest or at least a perceived conflict of interest that needs to be managed.

And so in those circumstances, I think a prudent company or a prudent employer probably has a policy that says, "If you are in a relationship with someone in your direct line of reporting, it's on you, the senior manager, to report that into human resources." And then steps can be taken to manage the conflict of interest. So there's nothing that stopped you. Nothing to say to you shouldn't be in a relationship with someone. But if you are, let us know so we can take steps to manage the conflict of interest, or the perceived conflict of interest. So that's the first part.

The second part I think is more around understanding what sexual harassment is at work, understanding the drivers of sexual harassment at work, and making sure that managers and employees are really clear on what is the expected standards of behaviour at work. And so that applies to everybody. Not just people who might be in a relationship or might not be in a relationship, but to everybody. They understand the sorts of behaviours that are and aren't accepted types of behaviour at work.

Belinda Zohrab:
How should that policy then be communicated to staff without creating a culture of fear or even surveillance?

Jodie Fox:
Yeah. And I think it's about explaining that piece. One is, look, we have a general standard of behaviour that we expect everybody to apply at work regardless of whether or not you're in a relationship. Even if you're in a relationship with someone, it's still not okay for you to make sexual advances that are unwanted towards them at work, for example. So making sure that the entire staff understands where the standards lie and then the entire staff understands, why is it that I'm asking you about your personal life?

Why is it that I'm asking you to inform us if you're involved in a romantic or a sexual relationship with someone at work if they're in your reporting line? And to be really clear with them about what the legislation says about managing risk, what the employer's responsibility is, what their liability is, and also what those manager employees' liabilities are as well, because we do have personal liabilities not to sexually harass people.

And so I think it's about providing information and making it really clear that the information that's provided under a policy to notify human resources about a sexual relationship at work is kept confidential. You have perhaps one person who is the conduit for that information, and that person can then manage the conflict of interest across the organisation. It doesn't have to be shared. It certainly doesn't have to be a subject of conversation, or certainly not gossip within the organisation. It's just sensible risk management would be the way in which I'd be approaching it.

Belinda Zohrab:
What are some of the ethical red flags that leaders should be aware of if they find themselves personally or observing such a relationship?

Jodie Fox:
It's an interesting one, isn't it? Because of course our hearts and our heads go in different directions sometimes when we're in a romantic relationship with someone. And I've certainly, with my workplace investigator hat on, sat across a table from someone who's a very senior executive who has had a very ill-advised romantic or sexual relationship at work, and they know and I know that they're sitting there thinking, well, what were you thinking? I think the, probably, answer is they weren't thinking very straight. But I think there's some really good research on this.

Rachel Doyle, who did a small monograph for the Monash series, talked about this series of red flags that really should be raised if we're looking at deep power imbalance in romantic relationships. So it goes something along the lines of, and I can't quote it directly, but it goes something along the lines of, is the person you're thinking about entering into a relationship with 10 years or more your junior?

If that's the case, then perhaps there should be a red flag that raises in your mind about, is this a good idea to enter into this relationship? And the second question is, is the person that you're thinking of entering into a relationship with in some way dependent on you? Are they your report? Are they in your reporting line? Are they dependent on you for professional contacts? For patronage?

If that's the case, again, there should be another red flag going up. And the third red flag that Rachel Doyle talks about in her monograph is, if there's any suggestion that you are saying to the person that you're about to enter a relationship with that this relationship should be kept secret or even on the down low, then that should be also another big red flag from an ethical perspective, that this is not a relationship that is particularly ethical to be entering into if you're arranging to have a romantic or sexual relationship with someone at work.

So I think thinking about some of those big red flags and thinking about also just the perspective of what it's like to be a more junior employee entering into a relationship with a senior employee, and thinking about the imbalance of power not just organizationally, but the imbalance of power of knowledge and of money and all of those sorts of things might mean that it makes it very difficult for the more junior person to say no to a romantic or sexual relationship. And so there might be some ethical issues around that as well. Yeah. So those are the sorts of things I think that you'd be asking them to look at.

Belinda Zohrab:
Thank you. Those are really good insights. So do you have any final tips for professionals in the workplace that might find themselves entering a romantic scenario with a colleague?

Jodie Fox:
I feel like the fun police. Look, I think if you're entering into a relationship with a peer, if it's all above board, if we're not asking each other to keep things secret, I think the main tip is to be really sure. You want someone to be enthusiastically consenting to your advances, your sexual or romantic advances. You want to make sure that the consent, it's freely given and it's enthusiastic.

You're not beating someone down. But if that's the case and you are careful, I think that we can enter into relationships with people at work. And I know that we all know many happy couples that have met at work, but it is an area where we do need to be more concerned, more careful, and just to really think about it before things go too far down a particular path.

And I guess the other tip would be, just in relation to risk and relationships, is those intimate interactions or romantic or sexual interactions that happen at the company Christmas party or at company drinks, or those sorts of things with alcohol, and possibly being offsite. Those sorts of things happen. I think those are things that I would think very carefully about if I were a senior person at work.

I would be extremely careful about entering into those sort of ad hoc relationships where alcohol and being offsite are involved because I'm pretty certain that they can be a significant risk. But other than that, I think that I'm not necessarily against the idea of love and relationships. But just to do it with a fair bit of care and a fair bit of thought.

Belinda Zohrab:
Great. Well, that's it for today's episode of INTHEBLACK. A big thank you to Jodie Fox for sharing her insights and helping us navigate this tricky terrain of workplace relationships. You've done so with clarity and compassion and a very strong legal lens, so we're very grateful. Thank you.

Jodie Fox:
You're very welcome. Thanks, Belinda.

Belinda Zohrab:
And for our listeners eager to learn more, please check out the show notes for links and additional resources. And don't forget to subscribe to INTHEBLACK and share this episode with your colleagues and friends in the business community. Until next time, thanks for listening.

Garreth Hanley:
To find out more about our other podcasts, check out the show notes for this episode, and we hope you can join us again next time for another episode of INTHEBLACK.