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Welcome to Perspectives.
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Fasken's Legal Voices on Business.
Daphne William:
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Hello, everyone. My name is Daphne William.
Daphne William:
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I am a partner in Fasken Labour and Employment Practice Group in Johannesburg.
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Today I'm joined by my fellow partner, Awutu Mbambo.
Awutu Mbambo:
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Hi, everyone. Daphne, I'm looking forward to chatting about this interesting topic that we
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have lined up for the recording.
Daphne William:
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I'm also looking forward to it.
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Today's discussion is influenced by February being the month of love.
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We will be chatting about how employers, specifically HR practitioners, can handle
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romantic relationships in the workplace or I know that this topic is not the usual top of
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agenda HR topic, but it isn't something that employers should sweep under the carpet,
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given the potential risks that such relationships can expose an employer to.
Awutu Mbambo:
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Yes, I agree with that.
Awutu Mbambo:
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Yes, this topic is also important since many employees are going back to the office more
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and there's a shift back to working in the office to hybrid work arrangements over
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remote work arrangements.
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So employees are once again engaging more in -person.
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There are a few scenarios that I can think of where a romantic relationship in a workplace
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can potentially be risky for an organization.
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For example, where a superior is in a relationship with a subordinate who is in his
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or her department.
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Are there any other scenarios that you can think of and what are the potential risks of
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having these romantic relationships in the workplace?
Awutu Mbambo:
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So there's another scenario that I can think of could be a romantic relationship between
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managers who are at the same level, but in different departments who are involved in
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significant decision making where conflicts of interest may arise.
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These type of relationships in a workplace put a spotlight on potential biases, on
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favoritism, on victimization and a potential disruption to workplace operations.
Awutu Mbambo:
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But before we touch on the potential legal risk, I think it is important for us to look
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at what the laws and the rules actually say about this.
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I mean, when people think about romantic relationships in the workplace, they usually
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have questions like, Can you have a relationship in the workplace?
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Is there a law that prevents people from having relationships romantically in the
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workplace? Do I have to declare it?
Awutu Mbambo:
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Those are the sort of questions that generally come up with this topic.
Daphne William:
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Those are very good questions.
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And to answer them, one, there are no laws prohibiting romantic relationships in the
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workplace generally.
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There is also no obligation on employees to disclose their relationships with their
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fellow colleagues to their employer.
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Employers may, however, implement workplace rules that prohibit workplace relationships
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or that require employees to disclose their romantic relationships to their employer.
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Even if an employer does not have a rule regarding the disclosure of such romantic
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relationships, there are certain instances where an employer may expect employees to
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disclose their relationships.
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You have already touched on the most important instance, and it is where any of
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the employees are in positions of power and they exercise such power or the exercise,
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rather, of the power will affect their partner.
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For example, during a recruitment exercise where the hiring manager is in a romantic
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relationship with a prospective employee, or where the determination of any discretionary
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benefits to employees will affect the partner of the person making the decision.
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In these circumstances, a conflict of interest arises or it has the potential of
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arising and it can be avoided by disclosing romantic relationships and not participating
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in the activities that give rise to the conflict.
Awutu Mbambo:
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You highlight some really good points there, and I want to add to this discussion that
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there are risks that arise for employers.
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And the one obvious risk of workplace relationships, if you look at the case law,
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is the increased risk of sexual harassment cases arising from people trying their luck
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by making advances on colleagues or even worse, a workplace romance going sour, which
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would thus blur the lines of the unwelcome conduct when those relationships have
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terminated. In this case, employers are required by the Employment Equity Act to
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prevent and eliminate harassment in the workplace.
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The Code of Good Practice on the Prevention and Elimination of Harassment in the
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Workplace was released last year in 2022, and it emphasizes the duties of employers in
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this regard.
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This code of practice should be an important agenda item for HR teams going into 2023
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because employers can be held liable for very hefty fines if they don't manage
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harassment cases in the workplace appropriately.
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So what do you think is the most appropriate way to deal with romantic relationships in
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the workplace?
Awutu Mbambo:
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So I'm going to give you the most lawyerly answer, because that really is the correct
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answer. There's no one size fits all approach to handling workplace
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relationships. Employers must consider their workplace culture, their demographics and the
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risks to determine what measures are appropriate to put in that specific
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workplace. This can range from having very detailed guidelines and policies requiring
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disclosure generally or in possible conflict of interest situations.
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But sometimes it just may be appropriate for an employer to reserve the right to intervene
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in workplace romances under certain circumstances that may affect operations.
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So it's important for each workplace to be assessed and to be considered based on the
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rules and the culture that apply in that workplace death.
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That's very helpful Awutu.
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I think employers should implement those guidelines.
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I have enjoyed chatting with you today on this topic.
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And to summaries, I think we both agree that romantic relationships can and have formed in
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various workplaces and it is important for employers to consider how to manage them.
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HR teams should also be thinking about what kind of training they can be putting in place
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to educate their employees about the impact that the relationships have on workplaces,
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operations and most importantly, the workplace morale.
Awutu Mbambo:
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Thanks Daph. It's definitely been great having this topic with you.
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It's not the easiest topic to navigate, but definitely it is something that organizations
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should consider and have the appropriate measures in place so they are equipped to
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manage the risks that can arise from these relationships because if they are managed
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properly they can work and you can have some weddings in the workplace.
Daphne William:
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And with that I'd like to wish all of our listeners a happy Valentine's Day.
Daphne William:
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Awutu Mbambo: Indeed. Happy Valentine's Day, everyone.
