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The world is an unequal place. But the law’s attempts to level the playing field somewhat can lead to inconsistencies and ‘priority battles’ that have not been properly worked out in the courts yet.
How do we deal with a workplace where sexism, racism, and youth culture collide? Is ‘Yo bi***’ acceptable when addressed to your boss (a very tolerant boss!), but not to your subordinate? Are certain terms racist epithet, or a term of friendly teasing between members of the same group?
The statutory rules say that ‘harassment’ occurs when conduct creates an offensive or intimidating environment, so even though the person on the receiving end of the comment may be OK with it, other people ‘in range’ who are offended can have a statutory claim based on their dislike of the way that other people are being treated.
The law (wisely) does not seek to control how people think, just how they act. And the basis of ‘equality control’ is limited to some (but not all) personal characteristics over which an individual has no control. But the law acts primarily as a ‘shield’ and not a ‘sword’. An individual can complain about acts or assumptions that disadvantage them, but they cannot use their own characteristics to justify improper behaviour of others. So although we have no control of our cultural or religious background, we may not cite that as justification for our own discriminatory behaviour, however profound their effect may be on our assumptions and expectations about other people. In the world of ‘equal rights’, some rights are definitely more equal than others.
I am not required to respect a culture which does not respect me, but in the working environment I am required not to express that disrespect in the way I act towards member of that group. And if my own cultural or religious position leads me to abhor some people, for example, that will not entitle me to express my hostility in the workplace, nor allow me to protest disciplinary action taken by my employer if I do so. And a man who can’t take orders from women for cultural reasons will not be able to mount a legal to challenge the imposition of a new female manager above him – but it still may cause significant organisational difficulties and disruption while the situation is resolved.
Many, if not most, organisations place an embargo on employees seeking to convert their colleagues to their religious or philosophical views at work, or encouraging them to behave or dress in accordance with them. By contrast, the employer is allowed to impose a philosophical view – but only so long as that philosophical view is a ‘non-discriminatory’ one. And the employer is allowed to impose a dress code – within an appropriate range. The standard of ‘diversity’, that at surface suggests that all cultures are of equal value, needs to be applied with subtlety. Some cultural norms are so prescriptive that to allow their adherents full freedom of expression would necessarily limit the freedoms of others. In the context of religious belief, the court cases so far have clearly come down in favour of disallowing the protection of the Religion and Belief Regulations to those who claim licence to participate in unlawfully discriminatory behaviour against other protected groups.
UK employment law, rooted as it is in a mixture of Victorian “master and servant” common law, local parliamentary interventions, and European-derived statutory provisions, struggles to keep up with changes in the world of work. But when HR is at the top of its game, the legal environment provides a springboard for supporting people and talent management in the organisation... these are not hurdles, they are the steps of a ladder leading upwards.
These are not academic consideration, but the reality of the daily calls we get for advice. HR practitioners find themselves wrestling with competing and complex issues, whilst attempting to provide the normal range of HR services. To identify solutions that are both culturally and operationally appropriate, and within the law, is satisfying and creative and makes a real contribution.
Annabel Kaye is an employee relations and employment law specialist.
With more than 30 years experience, she provides imaginative and effective solutions to client problems.
From advice to training and consulting, her focus is on “how can we make this work?”
Irenicon was founded in 1980 to provide specialised employment law advice and Employment Tribunal and Appeal Tribunal representation. The team of legal and personnel specialists provides a mix of skills and backgrounds in order to provide practical, well informed advice on all the available options in order to plot the best route to take.
Irenicon believe employment issues should not be viewed solely on a legal basis – commercial, company culture and employee relations must all be taken into account. We don’t make a lot of extra complications for you and we help you see clearly what the law requires, what is an optional extra and where there are grey areas.
Our clients vary from owner-managed businesses to large corporates. What they have in common is a desire to get the best out of their staff and the best out of employment law and a need for practical solutions.
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