Employees spend most of their waking lives at work. Therefore, it is quite likely that co-workers may start to develop more personal relationships with their fellow colleagues – or an intimate relationship with one personal in particular. Employees have a right to privacy that should be respected in the workplace. The Constitution of South Africa, 1996, enshrines this right to privacy for every individual, which is regarded as an extension of every person’s right to dignity. However, like every other right in the Bill of Rights, it is subject to justifiable limitations. As soon as a relationship starts having an impact on the organisation, the right to privacy of the employees involved is diminished. It is then, when the relationship has a negative effect on the operation of the business that an employer can interfere and take certain disciplinary steps.
The prevalence of co-workers being in a personal relationship
According to research conducted in Britain by YouGov published in February 2020 meeting potential romantic partners is most common either through or friends.
In illustrating different workplace relationships, here are three helpful scenarios published in an article entitled, “What to do when an office romance gives a problem” on the website www.labourman.co.za :
Scenario 1: An employee has an affair with the CEO’s wife
This actually happens! In this scenario, believe it or not there is no misconduct involved. The employee can be charged with stupidity yes, but not misconduct.
Here the CEO and the employee will need to have a one-on-one meeting to try and resolve the matter. If the CEO cannot continue working with the employee, it is suggested that the CEO propose a ‘termination by agreement’ to the employee. This will be where the CEO suggests to the employee that they end the employment relationship. This will involve no money other than payment in lieu of notice. If the employee does not accept this, the CEO should give the employee notice of termination on the basis of incompatibility. Incompatibility would be where the employee is not able to work in harmony either within the corporate culture of the business or with fellow employees. The employee’s conduct could be the cause of incompatibility in the workplace.
An adulterous relationship is not necessarily grounds for instituting disciplinary action against an employee. Employers need an operational, not a moral reason to take disciplinary action.
Scenario 2: Co-employees become intimately involved
In this situation there would be no reason to intervene. However, if the relationship impacts on the working environment then the employer has the right to intervene.
“The employer does not have the right to expect the employees to end their relationship, even where it has a negative impact on the workplace.”
For example, the employees involved may behave inappropriately at work, or personal conflict that could flow over into the workplace. The employer does not have the right to expect the employees to end their relationship, even where it has a negative impact on the workplace. This would be an invasion of privacy. In this scenario the employer would use less restrictive means to maintain discipline and protect its interests. It would be advisable to resort to disciplinary action instead of dismissal. The employer could charge the employees with misconduct, alleging that there is a workplace rule prohibiting inappropriate and intimate conduct in the workplace. However, the employer must make sure it has a ‘do not fraternise’ clause in its employment contracts.
Improper conduct can justify disciplinary action but expecting employees to end a relationship would be an invasion of privacy. Another possible option is that employees could be moved out of the same department, if this is feasible. But here again, because it is changing the conditions of employment, the employer needs to get the employee’s consent.
Scenario 3: Spouses determine one another’s duties, salaries etc.
In this situation there would be operational issues, giving the employer the right to take action.
The employer could move the employees into different departments to avoid any future conflicts of interest. It has to be made sure that they agree to change their conditions of employment.
What about the possibly negative outcomes of intimate relationships born in the workplace?
A University of Pretoria study entitled, “The effect of dissolved workplace romances on the psychosocial functioning and productivity of the employees involved” by Professor Lourie Terblanche and Ms Hendrika Verhoef found that while office love “could be beneficial … like long-lasting marriages … some employers might find them problematic” – that they have the potential to end badly, opening a “Pandora’s box of possibly complicated legal, emotional, ethical or productivity consequences”.
The main conclusion of this study confirms the overall negative effect of the breakdown of workplace romances on the psychosocial functioning and productivity of the employees involved in the workplace and gives an indication of how an EAP could most effectively respond to this phenomenon. Mediation as a possible strategy is recommended to deal with workplace romances.
The boundary between mutual attraction and harassment in the workplace
There is everything wrong when an employee expresses their affection in the workplace to a co-worker to the point where the conduct in question crosses the fine line between innocent attraction and sexual harassment – where such conduct creates a sexually hostile and intimidating work environment that undermines the dignity, privacy and integrity of the harassed. 3