Never again another Bill and Melinda Gates?

By Cecilia Lahaye

11-2019

The McDonald's CEO case raises a fundamental question between company policies and our right to love whom we choose. A company code that strictly forbids consensual relationships in the workplace seems to undermine a fundamental human right. The question is whether such a code is legally enforceable.

The CEO of McDonald's has to leave because he has a relationship with an employee. To be clear: it is a consensual relationship and therefore has nothing to do with #MeToo. Nevertheless, Steve Easterbrook bit the bullet. He admitted that the relationship was "wrong" and agreed with the Board's decision that it was time for him to move on.

From a compliance perspective, his actions were seen as the right approach. The reasoning goes: if the company rules explicitly prohibit romantic relationships between employees, you must adhere to them. Easterbrook, in this case, broke the rules by engaging in a relationship with a subordinate, and we should expect a CEO to set the example. Indeed, in the #MeToo era, a company cannot afford to suffer any reputational damage in that regard.

But is that the case? What about the fundamental right guaranteed by Article 8 of the European Convention on Human Rights: the right to respect for one's private and family life? Unmistakably that right to a private life also exists in the workplace. The Court in Strasbourg has repeatedly confirmed as much, although this right is often at odds with an employer's right to control its employees.

To protect its business interests, can a company intervene in the fundamental right of every individual to link his destiny to that of a person he or she happens to meet in the workplace? That question has become even more pressing in this time and age, as the boundaries between living and working are becoming increasingly blurred.

In real time

The workplace is the place where people interact the most "in real time", outside of social media. Between teamwork, office lunches and sporting events, it becomes inevitable that social contact with colleagues will "ignite the spark." The French mathematician Blaise Pascal already knew: "Le coeur a ses raisons que la raison ne connaît point" [The heart has its reasons that reason ignores]. That makes us people of flesh and blood - and not robots.

And what is so "wrong" about Bill and Melinda Gates? After all, they met in the workplace. As brilliant and passionate scientists, they spent most of their time there, so they had the best chance of finding their life's partner there. A company code that strictly forbids consensual romantic relationships at work seems to be in breach of a fundamental human right and therefore not legally enforceable.

By no means does this imply that everything is possible in the workplace. Obviously, sexual harassment is always inadmissible, and rules must apply on how to deal with potential conflicts of interest, such as favouritism in promotions. But that is not insurmountable.

It's hard to see how a private consensual relationship makes the love-struck CEO "unfit" for the job if he is otherwise dutifully carrying out his work.

Dumped

Of course, in situations such as these, the CEO must step back when it comes to decisions about his lover's bonus. And yes, there is always the risk that an office relationship will go sour and a "dumped" partner will want to take revenge on the company by leaking confidential information. But that will not be prevented by an absolute and far-reaching ban on love relationships at work. There are other proven and proportional means to achieve that goal, such as a valid confidentiality clause.

How will the Easterbrook story end? We certainly don't have to worry too much about him. His public stepdown is no doubt linked to negotiations around his severance pay (and perhaps his beloved's as well?). The media storm will soon blow over, the validity of the company policy will remain unquestioned and the "partners in love/crime" will be paid out.

In Belgium, such an approach - despite all policies - would nevertheless raise questions about the apparent (un)reasonableness of the dismissal. Moreover, a dismissal for serious cause on that ground alone would probably not pass the judicial test.

All in all, it seems to me that the whole case is yet another example of the business community's exaggerated and tense reaction to the #MeToo movement and to the inevitable and universally human phenomenon of consensual romantic relationships at work.

For any questions on your workplace policies, unacceptable behaviour or employment law more generally, please contact Cecilia Lahaye or our Brussels International HR Services team.