We all know that employees have a high degree of legal protection in relation to equality issues, whether that be religion, gender, race or sexual orientation, to name but a few of the characteristics protected under the Equality Act.
This is all to be applauded and recognition of many of these rights has been hard fought over an extensive period. But in this crowded space of protection, clashes of rights inevitably happen.
When does expressing a protected belief cross the invisible line into workplace harassment? It happens more often than you might think. Take an example … if an employee has a deeply held belief that gender is defined at birth and is not a matter of individual choice, can their employer discipline them for expressing that opinion if it offends another colleague? Can the employer discipline the individual if that opinion itself stems from a legally protected religious belief, such as Christianity?
These are the sorts of “clash of equality rights” cases employers are dealing with more frequently. How should they balance competing legitimate and protected interests? This is notoriously difficult. It can become even more difficult where the rights to be protected are evenly balanced from a legal perspective, but the strength of feeling in a workplace strongly favours one side of the debate. For employers these clashes do not simply risk an unpleasant working environment; they can lead to legal exposure most commonly in the form of unlawful harassment. This needs two main ingredients: a protected characteristic and the potential to offend someone on the basis of that characteristic.
Looking first at the idea of a “protected characteristic”. The breadth of beliefs which fall under the banner of a “protected” belief is not static. Not all beliefs are protected. They must be more than a passing political fancy. There is a five-stage test to be met which includes the requirement that the belief must be genuinely held, and it must not clash with the fundamental rights of others.
For example, a belief in Scottish independence or ethical veganism can but will not always, be legally protected, depending on how deeply rooted the belief is and how significantly it impacts on how the person lives their life.
Turning to the second ingredient, the potential to offend someone; this is a broad and largely subjective test. It does not require motive or intent on the part of the person who for example makes the remark or posts the comment. It is about the impact on the recipient.
So how should employers navigate these clashes when they arise? From a legal perspective, they need to carry out a complex balancing act which weighs up the competing rights and interests. Employers will need to show sensitivity, awareness and fairhandedness. In some cases it may result in saying to one employee, your views offend your colleague, and while we respect your right to hold that belief, there are limits on what you can say in the workplace.
And as with all conflict at work, prevention is better than cure. It’s important to remember that in this space, responsibility does not rest only with employers. Employees have responsibility too. Employees should understand the concept of “inclusion” in its broadest sense, by accepting different viewpoints, and that may involve exercising restraint in expressing views where there is a potential to offend.
Employers should not be afraid to remind employees of the need for tolerance and respect for others. This is unlikely to end “clashes of rights” in the workplace, but should help employers limit their legal exposure, and ensure they are delivering on their commitment to inclusion.
Gillian MacLellan is a partner at international law firm CMS.
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