Rebecca Thornley-Gibson outlines how far firms can go and wonders whether recent comments by business secretary, Kemi Badenoch, may herald a change
Employees’ conversations – spoken, written and online – are part of workplace communications, but the topic range can be broad, and not always welcomed by everyone. Problems can arise when employees candidly share their views and beliefs, and exercise what they see as their right to freedom of expression.
Opposing employee views carry risks, not only in creating tension, but also the potential for Equality Act 2010 legal claims. The dilemma facing employers is whether they need to become more prescriptive on what can and can’t be said at work, or whether this will stifle natural conversation and create an environment that is considered sterile and unattractive.
Businesses need to set standards of workplace behaviour, and most do by having codes of conduct and policies covering what they expect from employees. Employer values and expectations are also reflected in diversity and inclusion measures, but positive and well-meaning actions to be inclusive can create unintended consequences and negative impacts for some companies.
Recent high-profile discrimination cases concerning protection of philosophical beliefs, or lack of, demonstrate the risks for workplace environments allowing an exchange of conflicting views. Such cases, including gender-critical belief and veganism, will lead to employers reviewing their approach to the extent they need to get involved in managing workplace conversations.
Some businesses may feel stifling workplace conversations has a damaging effect on the workplace culture, but when one person’s healthy debate is perceived as another person’s harassment, the risk management approach of most organisations will lean towards more control over conversations.
The Equality and Human Rights Commission (EHRC) narrative on harassment is likely to be read by employees as not putting a particularly high bar on being able to prove harassment. If the behaviour is unwanted and the employee finds it offensive, provided the claimant has a protected characteristic and can show the behaviour had the purpose or effect of violating their dignity, or of creating a degrading, humiliating, hostile, intimidating, or offensive environment, the claim will be successful.
As unwanted behaviour, according to the EHRC guidance, includes spoken or written abuse, offensive emails, tweets, and website comments and “banter that is offensive to you”, it is not surprising that HR is regularly dealing with harassment allegations arising from workplace conversations.
An increased level of control can result in challenges from employees who will say that they are scared of saying the ‘wrong thing’ and that they are fearful of disciplinary action if they act a certain way, or make a comment that is not well received by a colleague. However, employers are vicariously liable for the acts of their employees, Moreover, statutory liability requires employers to accept they are responsible for not only communicating expected standards of behaviour, but taking action and policing conversations in the same way they would with any other behavioural concerns.
Recent comments by business secretary, Kemi Badenoch, acknowledging concerns about how the Equality Act is being used by some groups, will be of little comfort now to HR teams which are dealing with grievances and claims arising from conflicting views. However, her comment that “the Equality Act is a shield, not a sword” and her stated commitment to “bringing people together, rather than atomising them into identity groups, and helping businesses to focus on delivering healthy working environments, rather than becoming social regulators,” suggests that businesses shouldn’t have to take on the role of regulating
the conversation. Perhaps the brakes are being put on the creative use of the Equality Act for some belief claims.
