I am the HR manager of a medium sized retailer. Two members of staff have just announced that they have got engaged which is the first I have heard about the relationship. I am concerned about how this may influence their work as they work closely together. I’m also concerned about how their colleagues may feel about it. I’m considering asking one of them to move to a different department. What options do I have? And what if they object?
The Sex Discrimination Act states that you will discriminate against a married person or a civil partner if you treat them less favourably than you would if they were single. Therefore, if for example the act of moving one of the employees to a different department might be considered to be a demotion, then this could be considered to be an act of sex discrimination and they may be able to make a claim to an employment tribunal.
Discrimination against married persons or civil partners may be indirect as well as direct. The same action of asking someone to move or moving someone may, therefore, give rise to more than one variety of unlawful discrimination and expose you to multiple claims.
Because these two employees do not appear to be married yet, you may be able to argue that they cannot be protected by the legislation until they marry however, it would still be advisable to exercise caution.
Case law in the past has suggested that when employers have operated a policy of restricting married couples working together this was an unlawful act of sex discrimination. Therefore, even if you were able to move the employees apart before they get married, if, after they are married, they object to the move they may be able to successfully argue that keeping them apart was an act of discrimination.
It may be worthwhile reviewing their contracts of employment. If either or both of them have a mobility clause in their contract you may be able to ask them to move under this clause. However, if you do take this option you must make sure that you stay within the parameters of the contract. If you do not comply with the terms of the contract the employees could make a claim for breach of contract.
If you do decide to take further action and any employee makes an objection at any stage, ensure that you follow a full grievance procedure.
Jacqui Parker, partner and Emma Dickinson, trainee solicitor at Simpson Millar