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Valentine’s Day not a ‘free pass’ for inappropriate workplace behaviour
The annual Christian celebration of love and romance should not be seen as an opportunity to act with impunity around one’s colleagues. As always, the spectre of sexual harassment in the workplace looms large, says one partner.
Jerome Doraisamy
In a blog post, Swaab partner Michael Byrnes said that there are some employees of law firms who might assume that the conventions of Valentine’s Day, including an expression or declaration of affection for a colleague, “provide a free pass or immunity in any disciplinary process, as if the cultural traditions of the day trump applicable legal principle”.
“If the conduct is unwelcome and has a sexual element (as many Valentine’s Day cards and gifts do), then there is a risk it could constitute sexual harassment. While cases of this kind very much turn on their own facts, it is highly unlikely that a ‘cultural tradition’ defence alone will be effective,” he explained.
“As such, unless the Valentine’s Day gesture is given in a relationship, or it is certain the recipient will give an affirmative response or not be offended, then it could be unwise.”
On the question of what employers can do to prevent such scenarios, Mr Byrnes said firms will be vicariously liable for sexual harassment unless they have taken ‘all reasonable steps’ to prevent it taking place. Further, the idiosyncratic culture of the workplace in question “should inform the practical approach to be adopted” by that firm, he added.
“While a Valentine’s Day warning email distributed to all employees, like the type that is sent before workplace Christmas parties, might be somewhat overzealous, if there is an apparent risk of some employees using the day to take liberties that are inconsistent with sexual harassment or other conduct policies then there could be value in reminding employees of their obligations,” he advised.
“Given the way courts very carefully parse the language of sexual harassment policies, it might also be worth considering updating relevant policies to include a reference to conduct on Valentine’s Day, lest it be subsequently argued a failure to specifically mention it is a lacuna leading to a conclusion the employer has not taken ‘all reasonable steps’.”
Lawyers Weekly recently spoke with McDonald Murholme principal Andrew Jewell about how law firms can manage office romances, including how and when a law firm should step in, and what are the legislative considerations to take into account when navigating such relationships.
To listen to our recent podcast with Mr Jewell on office romances in law firms, click here.
Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly and HR Leader. He has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. In June 2024, he also assumed the editorship of HR Leader. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of the Minds Count Foundation.
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