Should employees have to disclose personal relationships?
Posted on 14th June 2024
BP has introduced a new policy requiring staff to disclose all relationships with co-workers. As well as disclosing any current relationships, the company also insists that senior leaders disclose such relationships within the last 3 years. Workers must disclose relationships even if they do not believe there has been a conflict of interest, and could face disciplinary action for failing to do so.
The policy follows a scandal over the organisation's former CEO, who was accused of promoting women he had relationships with.
Last year, ITV introduced a similar policy following a scandal involving Philip Schofield, requiring employees to disclose relationships with colleagues, including living together, friendships (short or long term) and sexual, romantic or close relationships.
Why are relationships a concern?
Workplace relationships have the potential to cause difficulties for an employer. Relationships risk favouritism, conflict of interest and abuse of power. Relationships can also lead to legal claims, including allegations of sex discrimination, harassment and unfair dismissal (if an employee is terminated because they were involved in a personal relationship).
But attractions will often develop when people are working closely together. There are no laws that expressly govern workplace relationships in this country, and express bans on intimate connections in the workplace are rare.
How is this usually managed?
It is not unusual for contracts to contain a reasonable provision to avoid conflicts of interest or report any that do arise.
Most employers have policies about equal treatment and to prevent harassment and discrimination. Appropriate steps can be taken if there is a risk of a conflict of interest, damage to the business’ interests or a real possibility of harassment or unfair treatment. This may include disciplinary action.
These types of policies are usually sufficient. They allow employers to set expectations and lawfully respond to unacceptable conduct. Such policies protect employers from liability without requiring staff to disclose personal and sensitive information.
Employee rights
The Human Rights Act 1988 introduced the European Convention on Human Rights into our law, including a right of respect for private and family life.
Any information gathered by an employer on relationships will also be subject to the controls and safeguards in the Data Protection Act 2018 and the UK GDPR. Employers must have one of the specified lawful bases to collect and process sensitive data. But there are additional protections for particularly sensitive data such as race, ethnicity, political beliefs, religion, health, genetics, sex life and sexual orientation.
Employers may collect and process this data with the employee’s consent, but this consent must be freely given, separate from contracts and policies and can be withdrawn at any time.
Aside from consent, employers can collect and process this information if there is a legitimate interest in doing so, for example if is necessary to meet legal obligations, to assess working capacity, in relation to a legal claim or to protect the vital interests of the employee or someone else (but only if the employee is incapable of giving consent).
You could fall foul of data protection regulations if employees feel under pressure to provide sensitive information, rather than consenting freely. You could also be in breach of rules if they aren’t able to revoke consent, or their consent forms part of your policies or contract.
There may also be complications if disclosing a relationship meant an employee ‘outing’ themselves and their sexuality. In extreme cases, employers could be at risk of discrimination claims.
Employer’s duty to prevent harassment
From October, employers will have a duty to take reasonable steps to prevent sexual harassment. Labour have announced that, if they form a government, they will extend this to a duty to take ‘all reasonable steps’.
But experts, including our Principal Solicitor Ian Jones, have suggested that BPs policy may go beyond what is reasonable. There are better ways for employers to meet this objective with less invasive action and without leaving employers open to legal claims.
What should employers do?
While there are grounds for BP asking for some reasonable information, this policy seems excessive. Demanding sensitive information across the board may lead to suspicion, damage morale and create a culture of ‘grassing up’ potential suspects.
It would be better to judge each case or relationship on its own facts and merits. A good handbook should already allow you to act if you suspect sexual harassment, inappropriate behaviour, or misconduct where there is a conflict of interests.
Owners or managers who feel their company is not protected enough should focus on updating their grievance, disciplinary, harassment and bullying policies. They might also want to consider whether the company's whistleblowing policy is sufficient should staff need to raise concerns about individuals misusing their position.
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