As an employment lawyer, I have spent my most of my career advising clients how best to mitigate risks and claims, writes Danielle Spiers, a Partner in the Employment and Business Immigration Group at Sheridans. Advising a seasoned HR professional on the technicalities of the Equality Act 2010, for example, is one thing. However, advising an entrepreneur – with a couple of employees, say, and no HR team – can at times, be no mean feat.
So, you can imagine my difficulty, when I was asked by one such entrepreneur client whether his company was at risk of a discrimination claim because one of its employees bought another “rather overweight” employee a diet book as a Secret Santa gift. From my client’s perspective the most unfortunate part of this incident was the fact that it was obvious which employee had bought the offending gift.
He was not unduly worried about the consequences, because the case was surely “clear-cut”. In his mind, this was nothing more than a case of good old festive workplace banter. Whilst I’m sure my client genuinely held this view, the position was not so “clear-cut” from the recipient’s perspective. The recipient, having battled with weight issues and bullying previously, was unsurprisingly devastated, and submitted a grievance citing bulling and harassment (against both the employee and employer).
The legal argument
From a strict legal perspective, the above example would prove an interesting case to run. While on the face of it, there is currently no protection under the Equality Act in respect of obesity (although I suspect it won’t be too long before this is addressed), the employee does of course have alternative causes of action. For instance, in the event her obesity resulted in a disability, she could bring a disability discrimination claim (whilst remaining in employment).
She could also (provided she had two years’ service) bring a constructive dismissal claim. Alternatively, she may decide to visit her doctor who signs her off work for however many weeks (possibly months) with work related stress. She may even bring a personal injury claim. The possibilities are endless.
While, strictly speaking, my job as a lawyer was done, I couldn’t help but think that whilst clients of course need to mitigate the risk of claims, the debate shouldn’t end there.
Is there really ‘an acceptable prejudice’?
Why did my client feel that ‘banter’ about an employee’s weight was acceptable, when I’m certain he wouldn’t have felt the same way had the gift been based on the employee’s race, gender or disability?
The answer of course, rightly wrongly, is that there are a number of prejudices which are still seemingly acceptable in our society. Be it obesity, hair colour, wearing glasses, political views or class, society feels it is acceptable to treat people differently for looking, thinking or being brought up a certain way.
Drawing the line
So, where do you draw the line as to what is and isn’t acceptable in the workplace, particularly when what is acceptable to one person will not be acceptable to another, and comments can easily be misinterpreted? Furthermore, is some form of prejudice OK? Is it acceptable to hire the shop assistant who is in your view the better looking of two candidates because you believe that they will look better wearing the shop’s clothing and this, in turn, will lead to increased sales? Is this an acceptable position for the employer to adopt if it believes its position is justifiable from a business perspective, regardless of whether or not this is the case.
Legislation currently provides protection for eight protected characteristics, being age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief and sex. These protected characteristics are protected for a reason, and thankfully, the legislation is now fairly well known and adhered to. By way of example, in 2016/17 Employment Tribunals received 198 sexual orientation discrimination claims, as against 11,988 unfair dismissal claims. While we are, therefore, far from a perfect world (and the number of claims brought does not necessarily reflect reality) we are certainly in a better place than we were even 20 or 30 years ago.
Legislation could be widened to encompass additional protected characteristics. However, in my view, given the ever changing, fast paced world in which we live, I don’t believe that legislation would be able to keep up with an increasing list of prejudices society continues to throw at it. For instance, it is easy to imagine the next generation entering the workplace to be met with prejudices based on which iPhone they have, or whether they are using the latest social media site!
Culture of the business
In my opinion, rather than relying on the Government, and what would undoubtedly lead to complex legislation, the answer lies in the culture of the business.
The OED defines banter as “the playful and friendly exchange of teasing remarks”, and for me, this definition answers many of the questions. For an employer, while I appreciate it may be easier said than done, the holy grail should be about creating a culture of kindness, empathy, respect and dignity in the workplace where “the playful and friendly exchange of teasing remarks” is not only accepted but is welcome. It should not be about having a zero-tolerance approach to banter, which while minimising claims, results in a sterile working environment devoid of all humour, laughter and friendships.
What can employers do?
While many employers believe they have ticked this box because ‘we have a policy to cover that’, a policy which doesn’t accurately reflect the reality of the workplace, is not widely known or put into practice, and is never reviewed, is, from a legal and practical perspective, pretty much worthless (whether in terms of creating the right culture or defending claims). So how do we help employer clients to create this much aspired to workplace culture? In my view employers should be looking:
to conduct appropriate training with managers to ensure they understand and abide by the employer’s culture and policies;
to lead from the top – ensuring senior level management set an example;
to address problems as and when they arise rather than waiting for set meeting times or one to ones – burying your head in the sand will usually only exacerbate the problem;
to establish appropriate channels (perhaps by having an open-door policy) so that employees feel able to raise concerns, which they know will be addressed appropriately, without fear of victimisation;
to have a consistent approach to bullying, harassment and discrimination which is applied across the workforce, without exception; and
(where applicable) to have a consistent approach to sanctions.
If an employer is going to tackle the enormous task of ensuring that a group of people who spend most of their working week together, but come from radically different backgrounds, may not ordinarily choose to spend time together (and quite frankly, might not even like each other), not only get along, but are able to work together in what can be a stressful and competitive environment, it is going to require a company-wide approach, time and devotion. A piece of paper pinned to a notice board promising to treat each other with respect and dignity isn’t going to cut it!
However, the holy grail is possible, and when the company gets there, it will usually be rewarded not only with fewer claims and grievances, but with a happier, more motivated, loyal and productive workforce, where concerns about which gifts are exchanged during Secret Santa become a thing of the distant past.