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Are workplace relationships legal?

John Tory’s relationship with a former employee has raised questions about the ethics of a workplace romance with a power imbalance

There are no laws in Canada that prohibit a consensual workplace romance between a boss and an employer, however, such a relationship could become difficult. Peter McSherry, an employment lawyer in Guelph believes that a workplace romance could become problematic in many ways, “But the biggest concern is that given there is a power imbalance between a boss and an employee it may be unlikely that the relationship is completely voluntary.”

McSherry says, “There is the possibility of a subordinate employee being the target of retaliation or reprisals for trying to end the relationship.” That person could lose their job. They could be terminated with accusations “for cause”, and then must fight for their right to compensation. They could be terminated on a “without cause” basis and still fight for fair compensation. In that case the employee would be entitled to a full severance package. Or it could end up being a constructive dismissal where the relationship ends badly, the work environment becomes unbearable, and the employee is forced to look for work elsewhere.

Conflicts of interest

Another huge concern is that preferential treatment or at least the perception of preferential treatment is being given to a subordinate employee because of the romantic relationship.

There’s a decreased tolerance for the issues around a power imbalance in a workplace relationship and a greater understanding of why it is wrong and the importance of setting boundaries in a professional environment.

McSherry says, “Even in relationships between equals, one employee may have more social influence in the organization than the other. Or the ending of a relationship could result in behaviors that are stalking or harassing, even with people who are on the same level.” The highs and lows of a couple’s relationship could play out in the workplace particularly when the relationship is ending badly.

Workplace relationship disclosure

While not implementing an outright ban, many companies do have policies requiring disclosure. Disclosure would protect the rights of the parties and bring knowledge of the relationship out into the open.

Disclosure is often difficult because sometimes relationships develop over time and as McSherry points out “There are often more personal considerations. Oftentimes parties are reluctant to disclose to an employer because possibly one or both may be married or in another relationship and may fear repercussions in other relationships.”

If there is a company disclosure policy, not disclosing could result in firing. McSherry says, “Disclosing a relationship under the circumstances may still get a manager into trouble and endanger their right to severance if the relationship goes sour because that may still be deemed non-consensual based on the power imbalance between those involved.” It's possible that company may fire someone “for cause” or without severance pay if their workplace relationship is in breach of policy.

Because it’s most often females who are the subordinate employees, an imbalance of power could very well be a human rights issue. McSherry says, “That’s why employers would want to require disclosure, and once there is disclosure, to make changes to prevent the power imbalance in the workplace from happening. Even the fear of reprisal on the part of the subordinate employee may be harmful to that employee and negative to the proper functioning of the workplace.”

Contact a lawyer to protect your rights

The first step is to determine what the company rules are and what you need to do to comply. McSherry advises, “The first thing a person should do is gather up the internal documents that your employer has and meet with a lawyer to determine what policies may apply to you because different employers may have different rules that apply to different employees.”

McSherry has counselled couples in consensual and harmonious relationships but still the employer had concerns about the impact on the workplace and wanted to avoid a potential conflict of interest. The more senior employee in the relationship was reassigned to ensure the subordinate employee did not report to them.

If you’re the party who is being forced to leave or enduring reprisals for having engaged in a consensual relationship, McSherry stresses, “Absolutely you need to speak to an employment lawyer.”

If you’re an employee who has been disciplined or fired because of a workplace relationship contact Peter McSherry at (519) 821-5465 Email: [email protected].