Conflicts of interest may be actual, potential or perceived:
- Actual conflicts of interest: arise where there is a real conflict between an employee’s public duties and private interests.
- Potential conflicts of interest: arise when an employee has private interests that could conflict with their public duties. This refers to circumstances where it is foreseeable that a conflict may arise in future and steps should be taken now to mitigate that future risk.
- Perceived conflicts of interest: arise when a third party or members of the public form the view that an employee’s private interests could improperly influence their decisions or actions, now or in the future.
It is important to note that in the context of personal consensual relationships, the term ‘perceived’ refers to a perceived conflict, not the perception that a relationship may or may not be occurring.
2.1 Relationships to which the Conflict of Interest Model Policy applies
The Model Policy applies to employees who are in a consensual personal relationship and both have a professional relationship in the same organisation.
2.2 Definition of a consensual personal relationship
Consensual personal relationships include consensual sexual, intimate and/or romantic relationships between adults of any sex or gender identity. Relationships of this kind may be on a casual, periodic or regular basis and may or may not constitute a primary relationship.
A familial relationship of spouse or de facto partner also constitutes a consensual personal relationship.
2.3 Multiple avenues for disclosure
Organisations should provide multiple avenues for employees to disclose a relationship. This includes an employee’s manager, a different manager, a designated disclosure officer (e.g. Human Resources officer) or a designated management representative (for ease of reference throughout this document this person is referred to as ‘disclosure officer’).
Providing multiple avenues for disclosure ensures that employees may confidentially report consensual personal relationships while protecting personal privacy.
In some situations employees may need to disclose a relationship to someone other than their manager. For example, the employee may be in a relationship with their manager or may not feel comfortable discussing the matter with their manager directly. In such instances employees are encouraged to discuss the matter with a designated disclosure officer or designated management representative. Relevant parties, including managers, can then be informed as necessary when required as part of the process of managing the potential conflicts of interest.
2.4 Disclosing a consensual personal relationship
Consensual personal relationships involving people in a direct hierarchical relationship (i.e. in the same reporting line, where one person has supervisory or decision making authority over the other) represent a potential conflict of interest. Where such a relationship exists, the Model Policy requires employees to declare the relationship (case studies are at Appendix 1).
The risks of potential conflict of interests are likely to be heightened for officers in senior leadership positions.
2.5 When no disclosure is required
Consensual personal relationships may, in many cases, occur without any concerns arising around potential or actual conflicts of interest in the workplace, and may continue privately without any need for disclosure.
Employees who are in a consensual personal relationship without a direct hierarchical relationship are, in the first instance, required to manage the risk of a potential conflict of interest arising. Employees in this situation are only required to confidentially disclose a consensual personal relationship where an actual, potential or perceived conflict of interest cannot be appropriately avoided (case studies are at Appendix 1).
Personal consensual relationships in the workplace are complex and can have a range of impacts on the workplace, including on team members, if not managed appropriately. Employees who are in a consensual personal relationship without a direct hierarchical relationship should act professionally at all times and seek to minimise the potential impact in the workplace.
2.6 Privacy
Organisations should ensure that declarations of consensual personal relationships can be made in confidence to protect personal privacy. Relevant persons in an organisation should only be engaged when a conflict of interest arises and their particular services are required to manage it. Representatives of the employer involved in a matter raised under this policy must respect the privacy of personal information provided and the sensitivity of the matters raised. Disclosure of personal information should be limited to a strict ‘needs to know’ basis.
Disclosure officers should be aware of their obligations under anti-discrimination and privacy legislation. To illustrate the sensitivity of relationship information, it is possible to consider an example where an employee disclosing their relationship with a co-worker also reveals that the employees are same-sex attracted. The employees may not wish for their colleagues to know their sexual orientation and therefore this information must be handled with sensitivity.
Given the sensitive nature of information about an employee’s relationship status, the Model Policy does not mandate disclosure to colleagues. Where the relationship is between employees within the same area of the organisation, such that professional interactions are common, disclosure officers may wish to discuss the advantages and disadvantages of the employees disclosing their relationship to their colleagues. Disclosure officers should also discuss steps the employees themselves can take to limit the relationship’s impact on the work environment, for example, avoiding public displays of affection.
2.6.1 Requests for information
VPS employers must ensure that their procedures are compatible with the Equal Opportunity Act 2010, which prohibits discriminatory requests for information. A person is prohibited from requesting or requiring another person to supply information that could be used to discriminate against the person to whom the information pertains, unless the person requesting the information can show that the information is reasonably required for a purpose that does not involve prohibited discrimination.
An example of a non-discriminatory purpose is using the information to assess the possibility of a conflict of interest arising.
Any relationship information that is received should not be communicated, either directly or indirectly, to any person unless disclosure is necessary for the non-discriminatory purpose. This places limits on the people to whom the relationship can be disclosed. If employees’ relationship information is obtained to manage conflicts of interest or to limit the sharing of confidential workplace information, disclosure should be limited to those who have a role to play in preventing such risks from materialising (i.e. a legitimate, non-discriminatory purpose).