By Pattie Walsh (Partner) and Naveen Qureshi (Associate), DLA Piper Hong Kong
Given the amount of time people in Hong Kong spend in the workplace, it is perhaps inevitable that personal relationships will flourish. Many people are more likely to meet a partner at work than anywhere else. This then raises the question as to how employers should approach this sensitive issue, if at all.
Aside from the day-to-day social contact that employees might have with each other, office parties and social events often present a platform for office romances to develop. Employees often regard an office party as a type of private social function where normal workplace behaviour does not apply. A Chinese New Year office party that goes off the rails is not just the subject of water cooler gossip—it can be a real source of employee complaints, discrimination claims, damaged collegial relationships and even litigation.
The fundamental point that employers must be aware of is that every employer is responsible for the working environment and how each individual is treated within it. Employers are vicariously liable for the actions of their employees as they interact with each other—they do not have to authorise certain behaviour, or even know about it, to become liable.
Of course, there are some exemptions to this sweeping statement but not nearly as many as some employers might think.
Across Asia, the number of employers that have given significant thought to the potential issues arising out of relationships in the workplace is relatively small. The general approach appears to be to adopt a reactive strategy. Although this might be sufficient generally, when things go wrong, they could go very wrong indeed.
Employer duties
Employers have a duty to provide a safe place of work to every employee, which extends to their mental and emotional health. Employers must also ensure that they treat every employee with the implied duty of trust and confidence in mind. If an employer behaves in such a way that there is a clear breach of the duty of trust and confidence, this will potentially entitle an employee to walk away from the contract and claim constructive dismissal.
The workplace should not contain discriminatory practices or harassing behaviour. A key area of risk for is sexual harassment, particularly during work social functions where alcohol is being consumed.
Sexual harassment in the workplace encompasses any unwanted sexual conduct towards another person which could reasonably be anticipated to offend, humiliate or intimidate the other person. If one individual gets the signals wrong and engages in inappropriate personal contact or verbal advances, there is a clear risk of an allegation of sexual harassment-by either sex—for which the employer may well be liable.
‘Playing favourites’
Even if the parties are entirely happy with the personal nature of the relationship, unless the relationship is maintained in an entirely discreet way, other employees in the workplace are likely to be affected. It is critical that there is no room for other individuals to perceive favouritism or any other advantage as a result of the relationship. This is an even bigger issue if one of the individuals has a more senior role and particularly if there is a direct reporting line, or where one employee has a degree of influence over the other’s career progression.
When a personal relationship breaks down, the emotional state of each party is often heightened. Having emotional dramas played out in the workplace is something employers will want to avoid. Some thought should be given to this if workplace relationships are commonplace.
Workplace relationship policies
There is always a balance to be struck between an employer protecting business interests and the right of employees to their private lives. Thought might be given to a policy which seeks to balance those interests and address some of the challenges highlighted above.
Some multi-national organisations have ‘anti-nepotism’ policies in place, which seek to prevent the hire of an individual who is married to an existing employee of the organisation. In certain jurisdictions across the Asia-Pacific region, implementing such a policy can be problematic.
In Hong Kong, an employer is prohibited from treating any individual less favourably of the basis of his or her ‘family status’ or marriage to another employee. Specifically, under the Family Status Discrimination Ordinance (Cap. 527), an employer is prohibited from hiring an employee purely on the basis that he or she is married to an existing employee of an employer.
One exception to this is if the employer can show that after reasonable enquiries, there is a significant likelihood of collusion between the potential employee and the existing employee, which would result in damage to the business. This is a high threshold to satisfy and one that would be scrutinised carefully by the Equal Opportunities Commission, if challenged. For these reasons, we would not recommend having a general ‘no hire’ policy on the basis of marriage or affinity to existing employees.
So, what exactly should a workplace relationship policy include? We would recommend such a policy consist of several elements. Firstly, there should be a clear statement explaining why the organisation feels it appropriate to seek to introduce some rules around personal relationships at work, while making it clear that, fundamentally, this is a private matter for each individual. This should be combined with a prohibition on intimate or sexual behaviour anywhere in the workplace, not just the office itself.
Secondly, situations where individuals are required to confidentially notify the organisation about the existence of a relationship should be clearly identified. These situations will generally arise when individuals work in the same team or when either party is the direct supervisor of the other.
Thirdly, the policy should also stipulate both the right to transfer a staff member into another role or area when required by business needs, and the right to terminate one or both employees as a last resort when the management of the relationship is having a material impact on the business. This should be approached carefully—employers should be careful not to ‘punish’ one party or to promote another because of the workplace relationship.
Before transferring an employee to another role, or terminating the employment of an employee, employers should assess their business needs and ensure that the decision has been arrived at objectively. Often it is the female employee in the relationship who is transferred, or terminated. If the employee feels that she is being treated less favourably on the basis of her sex, this could form the basis for sex discrimination claim.
Educating employees
Employers should consider providing sexual discrimination awareness training to all employees. Often employers will implement such training only after a sexual harassment incident has occurred. If an employee files a sexual harassment or discrimination claim against an employer, the Equal Opportunities Commission will look into and consider what steps the employer has taken to prevent discrimination or sexual harassment – this will include the implementation of policies and preventative training.
Workplace relationships cannot be prevented. Being open and addressing potential issues is the best approach. This will hopefully ensure that the business is not adversely affected by personal relationships between staff, and that individuals are free to enjoy the workplace and any personal attachments that emerge.
Paul Arkwright
Publisher
