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Should there be employment consequences for using dating apps?

The Banerji and Folau cases have given rise to questions about the extent to which employees can express themselves on social media platforms. But to what extent can an employer influence a lawyer’s use of dating applications online?

user iconJerome Doraisamy 27 February 2020 SME Law
Carly Stebbing
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Workplace policies have been alive to issues surrounding social media and interoffice relationships for some time now, muses Carly Stebbing, but the question of whether said policies have caught up to the advent and explosion in popularity of dating apps is largely unanswered.

Speaking recently on The Lawyers Weekly Show, Ms Stebbing – who is the founder of Resolution123 – said that case law has evolved in that there is a recognition that what one does in their personal life, to the extent there may be crossover with the workplace, “then it is something that will be dealt with at work”.

“The Fair Work Commission has tried consistently to maintain a sense of a person’s privacy, but there are numerous cases that involve conduct out of work that then become something that is permissible for an employer to deal with,” she reflected.

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“I haven’t yet seen a policy that specifically deals with dating apps, and it would be interesting to see whether or not an employer’s workplace policy deals with general conduct outside of the workplace that would be expansive enough to deal with something that is actually quite private and personal, albeit conducted via means of technology such as a dating application.”

Workplace policies regarding use of social media platforms are becoming “more and more expansive”, Ms Stebbing noted, in response to the fact that new platforms continue to arise and the use of those platforms subsequently evolves. Employers cannot keep pace with this, she said, and thus policies will simply purport to be a catch-all.

“They will deal with the expectation of how you portray yourself, to the extent that it might prejudice the employer or put the employer at risk. To that extent, I think I can foresee a circumstance where maybe you’ve put yourself out there [on a dating app] and then a colleague or client is potentially on the same platform and sees it, and might bring it into the workplace,” she hypothesised.

“I don’t think that it could be argued that you are then representing the views of the firm in expressing certain opinions or preferences. That would be key: there would most likely be quite an expansive employer policy that will deal with the employer’s reputation, and you must conduct yourself out of hours in a way that doesn’t prejudice the employer’s reputation.

“It would become a question of, in so doing, in making representations or preferences [about one’s dating life], have you prejudiced the employer’s reputation in any way?”

This all said, legal professionals – particularly younger lawyers, who may be frequent users of apps such as Tinder and Bumble – shouldn’t necessarily panic about their use of such platforms, Ms Stebbing stressed.

“I don’t know that a workplace policy has to specifically acknowledge and exclude dating applications. I think the reality is that a typical workplace policy [will have to find] that there’s a connection to the workplace, that [one’s conduct] might have a negative effect on either the workplace, your employer, or your colleagues within it. And then, if that’s the nature of the conduct, then it’ll fall within the scope of the policy, and it’s something that the employer can action,” she said.

“But if you apply those typical rules around the fact that these are dating applications, you assume there’s a level of consent if you’re interacting with them. You engage yourself in a way that doesn’t go beyond what’s welcome conduct and what might offend a reasonable person. If you apply those rules in conjunction with the policies that already exist, I don’t think that we need to see workplace policies need to necessarily either expressly deal with dating apps.

“It may be reasonable for an employer to look to action or dismiss somebody for interacting on a dating app if they didn’t meet those thresholds because the person had gone beyond what was welcome conduct or became offensive in their interactions with others. That’s when I think it will always draw back into the workplace if there is that connection. So, if it’s a client or a colleague, then that’s where you run those risks.”

However, as a general rule, Ms Stebbing advised, lawyers should not be holding themselves out as legal professionals working for particular employers, especially if they are expressing particular preferences regarding their dating life in their bios.

In the same way that dating a co-worker can be inadvisable, Ms Stebbing sums it up as such: “Just don’t.”

 

To hear more of Carly's thoughts on the challenges boutique law firms face, book your ticket to the Melbourne or Sydney Boutique Law Summit here.

 

To listen to the full conversation with Carly Stebbing, click below:

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