By Michael Nadin - Associate Solicitor The government has confirmed that it intends to bring…
PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.
Is it possible to prohibit relationships between employees under UK employment law?
It has recently been confirmed that McDonald’s British born chief executive officer has been pushed out of the company after violating company policy by engaging in a consensual relationship with an employee.
The stated reason was that the CEO had demonstrated poor judgment, and that McDonald’s contractual policies (which applied to the CEO) forbids managers from having romantic relationships with direct or indirect subordinates.
In an email to employees, the CEO confirmed he had a relationship with an employee and said it was a mistake.
This occurred in the US, and the situation is therefore subject to US employment law. However, could a similar situation arise in the UK, and would it be lawful to dismiss an employee for having a consensual intimate relationship with a colleague under UK law?
According to various studies, between a quarter and a third of all long-term relationships start at work. Therefore, if policies prohibiting relationships are commonplace in the UK it would seem that the scope for employees being dismissed for breaching them would be very high.
The lack of case-law involving such dismissals suggests that dismissals pursuant to policies prohibiting staff relationships (even between managers and subordinates) are a relative rarity in the UK.
Our experience here at DFA Law is that very few employers have stand-alone policies which specifically prohibit staff relationships and it would be very rare for an employer to categorise breaching such a policy as “gross misconduct” (which would be needed to justify dismissal).
This could be because the Human Rights Act in the UK guarantees employees the right to privacy and a family life. Prohibiting a consensual relationship between two adults could amount to a breach of this human right.
Also, a draconian policy like this would likely alienate staff by suggesting that they can’t be trusted to act as adults in the workplace. This could cause resentment and hinder recruitment and retention of staff.
Without a clear, contractually binding policy coupled with a very good reason why staff relationships are inappropriate, it is unlikely that any dismissal in the UK relating to a relationship between two consenting adults could be justified
However, given the recent high profile scandals uncovered by the #MeToo Movement, including the sexual harassment allegations made against disgraced film producer Harvey Weinstein, it seems likely that many HR departments will be looking at their policies and wondering what can be done to minimise the risks arising from workplace relationships and / or sexual activity between staff.
Here in the UK it is already relatively commonplace to require staff entering into an intimate relationship to notify the company of the fact (especially if the relationship has the potential to lead to any conflict of interest). This allows the employer to review the situation and ensure that no undue pressure is being exerted by either party.
Some companies go so far as to reserve the right to separate employees in an intimate relationship to ensure that they work in different teams and do not hold line management responsibilities for each other.
This is primarily to avoid the risks of nepotism (including aspects of remuneration and potential for promotion) during the relationship or disruption to the business if the relationship breaks down.
However, a valid reason would be needed (along with clear contract wording) before an employer could exercise such a right.
When it comes to avoiding the risks of a senior employee exerting pressure on a more junior colleague to consent to sexual activity, UK businesses generally take a different approach to their US counterparts.
Instead of prohibiting relationships altogether, UK businesses prefer to focus on implementing and promoting policies on dignity and respect at work and preventing bullying and sexual harassment. In addition to the policies themselves it is a good idea to have a clear and accessible procedure for dealing with complaints about inappropriate behaviour.
After implementing the relevant policies / procedures businesses should then actively encourage all employees to read them and insist on appropriate training for senior members of staff. Keeping records of this is very important.
If done right, being proactive in this regard can allow employers to utilise the “reasonable steps defence” and escape being held vicariously liable for acts of sexual harassment carried out by their employees. This is very important because it is common for sexual harassment claims to be made after a relationship breaks down.
Not only can one party to a relationship allege that they did not feel able to say no to a more senior colleague, but it can also be sexual harassment if an employee is treated less favourably for refusing to submit to the advances of a colleague (which can arise if one party removes consent for the relationship to continue and the other party does not accept this).
In conclusion, stopping work relationships altogether is unlikely to be a practical solution for employers in the UK.
However, care should be taken to manage the risks when dealing with workplace relationships and here at DFA law we can help you design and implement appropriate policies to help minimise the risk and disruption that can arise from such situations.