It’s not a bug, it’s a feature!

The world is an unequal place.   Attempts to level the playing field via legislation  can lead to inconsistencies and ‘priority battles’ that have not been properly worked out in the courts.

How do we deal with a workplace where sexism, racism, and youth culture collide?

  • Is ‘Yo bitch’ acceptable when addressed to your boss (a very tolerant boss!), but not to your subordinate?
  • Is the term ‘nigger’ a 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. People ‘in range’ who are offended (or associated with a person sharing the same characteristics) can have a statutory claim based on their response.

The law (wisely) does not seek to control how people think, just how they act.   This covers what people say in the workplace.    The basis of ‘equality control’ is limited to some (but not all) personal characteristics over which an individual has no control.

  • It’s OK (in equality terms)  to call a smart person stupid if they are acting stupidly
  • It’s not OK to call someone who is mentally impaired (disabled) stupid

It’s not OK at work to insult people whatever the basis and many behaviours that do not breach the Equality Act might be viewed as bullying.

In Equality terms, 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 ‘protected’ characteristics to justify improper behaviour to  others.

We may have no control of our cultural or religious background, but we may not cite that as justification for our own discriminatory behaviour. .  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 gay people,  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.

A man who can’t take orders from women for cultural reasons won’t get much sympathy from a tribunal if he complains about a new female manager  – but he  may cause significant organisational difficulties and disruption.

In the context of religious belief, the court cases so far have clearly decided that religious beliefs do not legalise discrimination against other groups.

UK employment law is rooted  in a mixture of Victorian “master and servant” common law, local parliamentary interventions, and European-derived statutory provisions.   We struggle to keep up with changes in the world of work.

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.  Identifying solutions that are work  is satisfying and creative and makes a real contribution.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy. Tel: 08452 303050 Fax: 08452 303060 email: info@irenicon.co.uk

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Filed under discrimination, employment law, employment tribunal, Equality Bill

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