Coldplay and Kiss Cams: Managing Conflicts of Interest at Work

Look at the stars

Look how they shine for you

And everything you do

Yeah, they were all [an HR nightmare]

Yellow by Coldplay

Oof.  With the pictures of the Coldplay kiss cam going viral around the world showing a CEO and HR Director of an organisation embracing, and likely having an affair, the internet has had no shortage of memes, comments and opinions, some real, some fake and some AI generated.

There has probably never been a more public pairing of music and HR issues (other than this newsletter, of course!).  The “kiss cam” rather than the “stars” certainly shined a light on a number of issues.

This article is not talking about the public relations nightmare or the effect on those individuals’ families.  This article looks at the implications for workplaces and what an organisation in Australia could do in similar circumstances – particularly as it probably cannot rely on its HR department for advice in this instance.

Step 1 - Is there a policy on relationships at work or conflicts of interest?

Firstly, you would need to review the two individual’s contracts of employment to check if they are required to, for example, comply with the organisations’ policies and procedures.  Some contracts also set out duties that include, for example, acting in the best interests of the organisation or not doing anything that will bring the organisation into disrepute, in both personal and professional settings: see our article Don’t look back in anger: Getting Employment Contracts Right.  In these circumstances, it may also be prudent to consider if there is a suspension clause in the contract if you need individuals not to be at work while this mess is being sorted out.

Secondly, is there a policy or procedure on managing conflicts of interest? Organisations often have policies outlining that conflicts of interest must be declared, and if so, potentially managed.

A conflict of interest can be:

·         Actual – where the conflict actually exists;

·         Perceived – where the conflict is believed to exist or someone could perceive a conflict, whether or not there is an actual conflict;

·         Potential – a conflict is a future possibility and steps should be taken now to reduce that possibility.

Some organisations have specific relationships at work policies – ranging from “bonk bans” to requiring declarations about those relationships: see our article on managing relationships at work: Rumour has it: Relationships at Work.

When it comes to relationships at work, particularly if it is an extra marital affair, it seems less likely someone will declare that relationship.  From a work perspective, a declaration may simply be enough.

However, where there are two senior people in key decision making roles, this declaration is critical as there is a high risk of actual, perceived and potential conflicts of interest.

Step 2 – Was a conflict or relationship declared? Was there an actual, potential or perceived conflict? Will this need to be investigated?

If there was a conflict or relationship declared, then how did the organisation manage it? Were reporting lines moved? How was confidentiality managed?

In the case of two senior people, even if there was a declaration (which seems unlikely), was there an actual, potential or perceived conflict? It seems highly likely that there was a potential and perceived conflict, but whether or not there was also an actual conflict will also need to be determined.

Here the organisation would have to review all decisions relating to salaries, bonuses, promotions, hiring, job duties, rosters, training opportunities, reporting lines etc.  Were any of these decisions made by either of the two individuals “tainted” by this conflict?

An organisation may need to conduct a workplace investigation to ascertain the extent of the relationship, when it started, and whether there have been any breaches of its policies, procedures or Code of Conduct.  Whether or not to conduct an investigation will be determined by the question – if the allegations were true, would it amount to a breach of the law, our Code of Conduct, policies, procedures or organisational values? See our article What’s Up? Do I need to conduct an investigation for considerations about whether or not an investigation will need to be undertaken.

In circumstances where it involves two very senior people, there will also need to be careful consideration of the entire investigation process – who will conduct it? Someone internal or external? Will it be conducted under legal professional privilege? And is there an urgency to the investigation (particularly as footage has gone viral)? See our article Private Investigations: Choosing a workplace investigator.

In these circumstances, it is highly likely that the organisation will need to bring in an external investigator, given the likely implications for the company, its reputation and its share price, the likelihood that as it involves the most senior person in the organisation there will be difficulty appointing someone within the organisation to investigate these matters, and it would be difficult for someone within the organisation to be objective.

Step 3 – Is disciplinary action warranted?

I used to rule the world

Seas would rise when I gave the word

Now in the mornin', I sleep alone

Sweep the streets I used to own

Viva La Vida by Coldplay

Has the investigation report identified if the two individuals have breached any workplace obligations? This could be in relation to decisions made that were “tainted”, breaches of relevant policies, including a conflicts policy, or a breach of their employment contract.

One question that is asked is whether it is relevant that the Coldplay concert was (presumably) out of hours and not at work? After all, aren’t people entitled to a private life? The short answer is yes, people are entitled to a private life, but if there is a connection with work, then that out of hours conduct can be brought into question at work.  Here, there is clearly a connection with work as it involves two people in senior roles in a relationship that may or may not have been declared and/or managed.

Any disciplinary action that may be taken should take into account the investigation report as well as any other previous disciplinary action – has this happened before? Was there honesty by the parties throughout this process?

There will also need to be a fair process and an opportunity for the individuals to respond.

Is termination warranted? If not, is some other sanction required? The organisation will need to make some tough decisions.

Step 4 – Are there any organisation learnings?

When you try your best, but you don't succeed

When you get what you want, but not what you need

When you feel so tired, but you can't sleep

Stuck in reverse

And the tears come streaming down your face

When you lose something you can't replace

When you love someone, but it goes to waste 

Could it be worse?

Lights will guide you home

And ignite your bones

And I will try to fix you

Fix you by Coldplay

Could it be worse?

Whether there are broader organisation learnings will depend on the outcome of the investigation and any learnings from the process.

Firstly, did relevant policies exist? If so, were people aware of them and trained on how to manage conflicts? If not, it would be prudent to start drafting those policies.  Consider also who conflicts should be declared to, and how that confidential database will be maintained.

Secondly, was this “normal” behaviour? Are intra-office relationships the norm? How can conflicts be managed better? What does this behaviour say about the workplace culture? Were people aware of it, knew it was wrong but were too scared to speak up? Are “brilliant jerks” who perform well but behave badly tolerated? See our article: Let it Be: When your star performer is a jerk.  Or worse, is there a culture where sexual harassment or poor behaviour is tolerated and not addressed? In Australia, organisations have a positive duty to eliminate sexual harassment, and can no longer sit back and just deal with issues as they come up: see our article Don’t call me baby: What’s your board’s scorecard on sexual harassment? The organisation may also need to work on building a Speak Up culture: see our article Shake it off: Nope, not anymore.

It may be that following dealing with the specific individuals caught up in the “kiss cam” scandal and to avoid “tears streaming down your face”, the organisation needs to conduct a workplace culture review to ascertain if there are any broader organisational learnings or improvements to avoid these issues in the future.  See our article Never tear us apart: Workplace Culture Reviews for considerations about workplace culture reviews.

Viva la vida indeed.  Thanks Coldplay.

Remotely Legal can assist employers and boards on all aspects of employment law, including advising on difficult people issues, reviewing policies and assisting with enterprise bargaining.  Remotely Legal can train your boards and management teams on how to deal with incidents and investigations.  Remotely Legal can also be your fully outsourced HR and people legal team.

RL Investigations, part of Remotely Legal, are a team of highly experienced and qualified lawyers and investigators, who can function as your independent, external investigation team providing fast, comprehensive and reliable investigation reports, workplace culture reviews and suggestions for organisational improvement. RL Investigations can also help your internal HR or investigation team to improve their investigations and assist decision makers in considering the right factors when making key decisions.

This blog is general advice only.  Please obtain legal advice in relation to your specific circumstances.  This blog was written by a human so please seek permission if you wish to copy any of it.