Just over two years since the rise of the #MeToo movement in the wake of the Harvey Weinstein sexual abuse allegations, #MeToo continues to spark increased scrutiny around workplace misconduct, the focus of which has largely been on discriminatory treatment, sexual harassment and assault, all of which is non-consensual.
The recent news that McDonald’s has fired its CEO Steve Easterbrook after having a relationship with an employee highlights the greater level of concern that exists, even where the relationship is consensual. Mr Easterbrook became CEO in 2015 and over the last four years he has enjoyed much success, reportedly doubling the company’s share price. Despite this, McDonald’s has made it clear that in these circumstances he has “violated company policy” and shown “poor judgement”. It appears that McDonald’s has a standards policy which prohibits dating or sexual relationships between employees who have a direct or indirect reporting relationship. The details of the relationship are not known, but in this instance, McDonald’s appears to have taken a zero tolerance approach.
Mr Easterbrook is not the first, nor will he be the last employee to get involved in an office romance. Reportedly, between a quarter and a third of all long-term relationships begin in the workplace, but is it ethical, and should it be categorised as misconduct, or even gross misconduct, and are we going to see a rise in dismissals for this type of behaviour?
The heightened sense of awareness generated by #MeToo may result in employers taking a harder line when it comes to enforcing policies around employee relationships. Furthermore, with increasing numbers of relationships starting online, will the office romance become less common, making employers more likely to take a zero tolerance approach when issues arise?
Undoubtedly, employee relationships can raise a number of issues in the workplace. They can be disruptive, make co-workers feel uncomfortable, undermine hierarchy within teams and affect retention. They can also raise conflicts of interest and increase the risk of dispute and litigation when a relationship ends badly.
Whilst affairs and romantic relationships in direct reporting lines and/or that create a conflict of interest are generally frowned upon, serious and long lasting relationships in the workplace are more widely accepted. But what constitutes a serious and long lasting relationship?
There is a careful balancing act. On the one hand, employers are driven by a desire to protect business interests, avoid conflicts arising, and maintain employee productivity and morale. On the other hand employers need to respect an employee’s right to a private life. Could practices used by employers that interfere with an individual’s right to form relationships infringe the right to respect for private and family life under Article 8?
Employers also need to give careful consideration to issues that arise around employee relationships to avoid claims for unfair dismissal. Although a potentially a fair reason for dismissal in certain circumstances, particularly where this is a breach of a company policy notoriously and consistently applied, employers still need to follow a fair process and ensure they are consistent in their approach when dealing with office romances and consider alternative options first i.e. can the employee in question be redeployed? Can reporting lines be changed to avoid a potential conflict arising? Does any conflict identified give rise to a real commercial risk?
In addition to policies that combat discrimination and sexual harassment in the workplace, employers may also introduce policies setting out acceptable standards of conduct in respect of consensual relationships between employees. Whilst some employers will choose to prohibit employee relationships, particularly in circumstances where a conflict of interest may arise (e.g. where one of the employees involved is more senior than the other), other employers will simply require employees to disclose relationships to HR.
In the US, so called ‘Love Contracts’ or ‘Consensual Relationship Agreements’ are more commonly used by employers to get employees to confirm that the relationship in question is consensual and provide a level of protection against future claims relating to sexual harassment and discrimination. Providing training to managers about how to deal with disclosures about consensual relationships (as well as reports of sexual harassment) might also help to combat any issues before they arise.
It’s an issue that both employees and employers will need to be alive to in the light of the current climate and recent events.
About the author
Natalie Wellock is a solicitor at London law firm Hodge Jones & Allen