As many of you will be aware, last Saturday evening saw the airing of the outcome of a three-pronged investigation by The Times, The Sunday Times, and Channel 4’s Dispatches into the behaviour of world-renowned comedian, Russell Brand. 5 alleged victims have come forward to accuse Brand of rape, sexual assault and emotional abuse over a seven-year period while at the peak of his popularity.
The allegations have given rise to information regarding aspects of Brand’s employment while working as a TV presenter. One of the women involved in the show indicated that a ‘No Sex’ Clause had been written into his contract to stop the comic becoming sexually involved with his colleagues.
The truth of this is yet to be uncovered. However, from an Employment Law standpoint, it raises the question;
Are Relationship Clauses and Policies legal, and if so, to what extent are they enforceable by the employer or the Employment Tribunal?
The notion of ‘Love Contracts’ have existed for a long time, and attempt to limit the liability of the employer should work-place relationships give rise to certain issues, namely;
- Sexual harassment: if the relationship becomes unwantedly physical in the office.
- Conflicts of interest/bias: when one lover gives favourable treatment to another when opportunities for promotions etc arise.
- Sexual discrimination: if one party is treated less favourably should the relationship breakdown i.e. a junior member of staff is let go following the ending of their relationship with a superior.
- Confidentiality: GDPR breaches if the relationship was to remain a secret, or the passing of confidential business information to a subordinate who would not have known otherwise.
- And general loss of team dynamics and the risk of other employees feeling embarrassed to be in a couple’s presence.
The answer is that yes, relationship clauses and policies are legal in the workplace. But an employer must be careful as to the level of restrictions they place on their employees.
It is risky for employers to outlaw workplace relationships. Doing so not only risks damaging staff morale and making the workplace feel overly regimented, but also risks breaching Human Rights legislation. The Human Rights Act 1998 protects the fundamental right to private life for all individuals. A blanket ban against workplace relationships could well infringe this fundamental right.
In truth, with the amount of time that we all spend within the workplace, it is inevitable that romances will arise. The key for an employer is to be transparent and have a healthy communication culture, which is then supported by a Relationships at Work Policy. This Policy should outline requirements to disclose relationships to HR, put a plan in place should the relationship turn sour and effect the daily workings of your business. Therefore, the workplace will be implementing measures which balance its employee’s personal freedoms, while protecting its own interests.
Employers must be aware of the risks associated with failing to implement policies to protect employees and themselves. Vicarious Liability is a real risk should they fail to follow equal opportunities, discrimination and harassment legislation. An employer can significantly mitigate its exposure if it can show it has taken all reasonable steps to prevent issues like these arising. My take-away conclusions are that (1) “No Sex” clauses do not work, if the allegation against Brand is anything to go by; and (2) nor are they enforceable. An open workplace, supported by a transparent Relationship at Work Policy with extra training if required, is more likely to be successful and lawful.