Can an organisation forbid sexual relationships between staff in a Code of Conduct or policy? Yes, but such direction is unlikely to be enforceable. Given the hours people spend in and are associated with the workplace, sexual relationships between staff will occur. Dr Verena Marshall, Senior Workplace Relations Advisor for iHR Australia states that “rather than Code or policy forbidding their existence, organisations will do better to rely on broad legal principles that parties to a sexual relationship should be over 16 years old and consenting”.
An organisation’s Code or policy can also spell out the notion of conflict of interest; for example, a situation where a staff member has a sexual interest in another staff member who is subject (along with others at work) to duty of care. Legitimate directions for staff in such situations may include zero tolerance of:
- Sexual relationships with a vulnerable party (e.g., patient, student, client, parishioner, adult in care);
- Using the organisation’s resources for logistics (travel, accommodation, food and beverage) to facilitate a sexual relationship; and
- Offering advantage (e.g., promotion, job offer, pay increase) to a party in a sexual relationship, but not even-handedly to their colleagues.
If in doubt, parties should disclose the relationship.
Whilst banning such relationships is likely to be ineffective and unenforceable, organisations should seek to create policies that balance the interests of the organisation and employees. Organisations should provide clear directions for staff within a Code that acknowledge both that workplace relationships between consenting adults are inevitable and the continuing blurring of the boundary between public/private in organisational life.