'Sticky situations': Knowing the risks of holiday celebrations

As the holiday season approaches, many organizations are gearing up for workplace celebrations — a time to relax, connect and enjoy the company of colleagues.

Yet these events also come with risks, particularly when workplace “romances” come into play.

And those are common: 43% of Canadian workers say they have dated a manager or senior executive, found a recent Express Employment Professionals.

South of the border, another survey found that eight in 10 employees have been romantically involved with a coworker — and nearly half (41%) of these involved a direct supervisor.

Notably, 57% of the 1,000 workers surveyed by Zety said they would rather give up their jobs than lose their workplace relationship, and 29% admit to quitting a job due to a romantic relationship at work.

As a general rule, an employer has no interest in the romantic relationships of its employees, inside or outside the workplace, according to Michelle McKinnon, a partner at Cassels.

“An employer therefore cannot generally prohibit office romances, or otherwise direct employees in relation to their personal or romantic relationships.”

But there are exceptions to this rule, she says.

“Legal issues or concerns may arise… when romantic relationships in the office detrimentally affect the workplace or the employer’s legitimate interests, most often in the form of conflicts of interest or sexual harassment complaints.”

Alcohol and social events: double-edged sword

While holiday parties can foster camaraderie, the serving of alcohol often raises concerns, according to Roberto Enriquez, lawyer at McMahon Molyneaux Henriquez.

"Alcohol [and] other substances can make for, obviously, great social events, but they can also make for awkward and potentially dangerous situations depending on how far an individual might take it," he says.

"Employers should go into these things [with] eyes wide open.”

They should be aware that they have specific obligations in place, he says.

"Whether it’s a code of conduct that outlines types of behaviours that are permitted, those things should be laid out at the front, combined with training on what is harassment, violence, what is discrimination [and] sexual harassment in the workplace?”

Going into a holiday party, employers should be clear with employees that they will permit alcohol consumption at the party but expect everyone to behave professionally and to consume alcohol in moderation, says McKinnon.

“It's about communicating before the event that ‘We still need to uphold our levels of professionalism at the holiday party as well,’” she says, along with taking precautions such as having people there to monitor behaviour so they can address it immediately.

“It is a very difficult one to manage… But I think the best you can do is to very clearly communicate before the party that these are the rules around alcohol consumption and behaviour. Because, at the of the day, if you've got an individual and they do something sexually inappropriate to another employee, that could be a sexual harassment complaint, and ultimately, the employer is responsible for that and could be responsible for the actions of the employees.”

Supervisor-subordinate relationships

When it comes to romance at work, relationships involving power imbalances are among the most concerning, according to Enriquez.

"Although you may not see complete, blanket prohibitions on relationships — and I don’t know that I would recommend those — you might see prohibitions on those types of relationships between a supervisor and a subordinate. Because of those inherent imbalances, you can see how it can lead one way or the other to an escalation of problematic behaviours."

Policies requiring disclosure can help mitigate these risks, allowing HR to monitor for potential conflicts of interest, he says.

“It offers that layer of protection, both on… the discriminatory side of things, but also on the fairness and the meritocracy of the workplace.”

Sexual harassment complaints often arise from allegations that a manager or supervisor used their authority over a subordinate to coerce them into engaging in sexual favours out of fear they’ll lose their job, says McKinnon.

“However, sexual harassment complaints can also arise from consensual sexual relationships,” she says.

“A subordinate may engage in the sexual relationship and may appear to consent to it, but in fact may feel trapped and coerced into staying in the relationship to keep [their] job.”

Complaints could also arise if an employee feels aggrieved by a sexual relationship that has ended, even though it was always consensual, says McKinnon.

But employers have a legal obligation to provide a safe workplace, she says, including one that is free from all forms of harassment and discrimination.

“The employer can be held liable for the actions of its employees and employers, therefore, have a direct interest in managing the workplace and taking all precautions to prevent harassment, including sexual harassment.”

Workplace relationships: policy perspective

As a preventive measure, employers should implement a workplace policy regarding relationships – setting out expectations for both the employer and the employee, says McKinnon.

“These policies should clearly outline the conduct that is prohibited, provide for confidential reporting procedures, stipulate how disclosures or complaints will be investigated, clearly communicate that retaliation will not be tolerated, and state the consequences for a breach of the policy.”

Typically, employers will have a code of conduct that outlines restrictions on romantic relationships, she says, “and typically those policies will say that disclosure would be appropriate where the relationship may create a conflict of interest.”

This can arise when there’s a power imbalance between the two individuals, because the supervisor’s is also making decisions about the other person’s employment, including compensation and promotions.

“The manager's decision-making may be influenced by a personal relationship with that subordinate,” says McKinnon, citing an example of conflict of interest with the recent RBC case involving its CFO.

When it comes to workplace harassment or discrimination, employers don’t want to be in a situation where they allow anything to pass, says Enriquez.

"You want to have some semblance of policy that recognizes the fact that a romantic relationship can lead to difficult, intense workplace relationships, which can sometimes take on these elements of harassment."

While outright bans on workplace relationships are rare and can create “difficult and sticky situations,’ he suggests targeted limitations where necessary.

"From a policy perspective, from a managerial perspective, you don’t want to get so involved in employees’ lives as to dictate that all relationships are precluded," he said. "I think it’s better to just take an approach where you outline specific limitations... and potentially the reporting obligations.”

Employee privacy versus disclosure

While 88% of employees feel that workplace romances should be reported to HR, only 40% of those who have engaged in such relationships have actually disclosed them, found the Zety survey, revealing a significant gap between policy and practice.

One of the most challenging aspects of managing workplace relationships is striking the right balance between employee privacy and the need for transparency. Enriquez advises that disclosure policies should be narrow and confidential to protect individuals’ rights.

"The policies as they’re drafted can limit disclosure to one particular contact person within HR," he says. "It can recognize and make clear that the employer respects the privacy of the individuals involved, but it needs to be aware of these things... so there’s a specific funnel where only one person, or a key set of people, are required to be aware of it."

This nuanced approach is particularly important in sensitive cases, such as relationships involving individuals who may not wish to disclose their sexual orientation, says Enriquez.

“You’ve got to balance the risks that might arise on the human rights front — when you need to respect the identities and the decisions of individuals and the relationships and the lives that they lead — against the obligations to try to ensure that there's this net of policies that ensure safety for employees.”

While employees do have privacy rights, these have to be balanced against the employer’s right to manage the workplace and potential conflict of interest issues such as perceived favouritism, through disclosure, says McKinnon.

But when it comes to the potential for “interactions” at workplace events, a disclosure policy is not really necessary, says Enriquez: “That seems overly intrusive on the lives of your employees.”

Just cause and non-compliance

Employers should also note that non-compliance with policies can have serious consequences, up to and including dismissal for cause.

Enriquez notes that this is particularly true when disclosure obligations are flouted in cases involving supervisors and subordinates in a relationship.

"There have been cases where, in the case law, if there is a disclosure requirement and parties fail to disclose... an employer has been able to rely on that as amounting to just cause for failing to abide by clear and express direction," he says.

"There are circumstances where, if you don’t follow the direction, and you keep things undercover, and issues arise, that can amount to an issue for termination where you might not be owed your entitlements."

While the circumstances for terminating an employee for just cause in Canada are very high, a compelling case could establish cause, says McKinnon.

“It will ultimately come down to the facts of the particular case. So, just how egregious was the failure to disclose and the conflict of interest?”