New rules needed

When talking to colleagues, friends and family over the weekend about the David Jones scandal, a common question kept being asked: “Yeah, but what really happened between Mark McInnes and the staff member?”

The general feeling – from males and females – was that there was really more to the story than meets the eye, and the board of David Jones may have over-reacted.

I disagreed strong, using the same argument made by Amanda Gome in her Boss Lady column last Friday. That is, exactly what happened does not matter. The incidents (repeated behaviour, it must be pointed out) were serious enough for McInnes to offer his resignation and for the board to accept it.

The bigger question for me is how prevalent harassment is in Australia’s business community? Is this a high-profiled but isolated incident, or symptomatic of a bigger problem?

That’s a tough question to answer, but certainly the arguments that I was hearing on the weekend – such as “the media is beating this up” and “this stuff happens all the time” – suggest the problem is real.

But what do we do about it, particularly if policies and procedures are not working?

In talking to workplace law expert Andrew Douglas this morning about the lessons for employers from the scandal, I was introduced to a method used by some US companies to try and remove any of the potential problems around workplace romances.

US firms are increasingly using instruments called “love contracts” to essentially govern the behaviour of dating work colleagues and protect the company’s interests.

As Douglas explains in this great article on the topic, love contracts involve the dating parties signing contracts that state the relationship is consensual, explain what the parties should do if the relationship ends and confirms that the employees are aware of the company’s sexual harassment and workplace ethics policies.

Where there is no contract in place, most workplaces have a simple rule – no touching another workmate without their expressed approval.

“The employer has the advantage of knowing that up to the time that the love contract is executed, there has been no harassment and if any develops, the duty to report it is squarely on the shoulders of those involved. This may protect the employer against any sexual harassment claims as the love contract provides compelling evidence the employees entered the relationship voluntarily,” Douglas says.

There are downsides of course, including the fact that many employers and employees would find the contract particularly invasive and perhaps unnecessary.

Douglas says he is no fan of the idea, but in the wake of incidents such as that at David Jones, he expects more boards will consider them.

Not only do they work from a harassment and ethics point of view, but the contracts also provide a way for companies to retain valuable intellectual capital that can be lost when a party who is upset at the ending of a relationship leaves.

Like Douglas, I think the idea of love contracts sounds quite invasive. But maybe the business community needs to do something to reinforce how seriously sexual harassment is taken, and exactly what is appropriate.

Some of the reactions to this incident suggest that the message still isn’t getting through.