Words have meaning. Language that is intrinsically connected to identity has the ability not only to shape perception but also to have a direct impact on a person’s wellbeing. From an employee reporting a colleague for calling them “babe”1 to managing casual ‘blasphemy’, the potential for offence in today’s workplace, now more than ever before, has created a minefield for businesses. Employers face the challenge of balancing employee self-expression not only against the priorities of the business, but also with the impact that the expression of one employee’s views may have on their colleagues.
Perhaps for the first time in history, businesses may simultaneously employ up to five generations. Personal life experience will shape an individual's identity and their values. Words, practices and phrases accepted or tolerated in one era may not be considered acceptable in another/with a more recent generation. Therefore, every generation is likely to have different expectations of what use of language is appropriate in the workplace.
As workplaces continue to embrace equality, diversity and inclusion (EDI), and staff become more willing to express their personal values at work and to examine to what extent their employer is in line with those values, how responsible are employers for setting standards of acceptable language?
EDI is a permanent fixture
EDI is not a trend; its inherent values have been part of the law for a long time, and it is becoming ever more firmly embedded within business culture. Equality is not the same as equity; contrary to what you may read, it doesn’t mean everyone should be treated the same. Rather it is about ensuring equality of access, treatment and opportunity for all. Diversity recognises everyone is different in obvious and less obvious ways and that these differences should be respected, valued, promoted and celebrated. Inclusion means everyone should feel part of the organisation and feel safe and welcome at work, irrespective of their background or perspective.
Under UK law, there is currently no positive requirement to actively promote diversity and equality of opportunities in the workplace2. However, a failure to do so would be likely to breach the employer’s obligations under the Equality Act (see below). Yet EDI is currently consuming the UK employment sphere; employee activism on different subjects is increasing. Complaints related to these subjects often attract headlines, social media coverage and staff attention.
Employer duties
It is an employer’s duty to take reasonable steps to protect the health, safety and welfare of its employees. An employee could sue an employer for failing to comply with its duty of care; this could also trigger a constructive dismissal claim where an employee has resigned because of a work-related incident which they say breached the employer’s duty of care.
Beyond their general duty of care, employers are likely to be concerned by the wider implications of employee expression leading to workplace conflict: stress, absence, performance, retention and brand and reputation.
The Equality Act 2010 provides legal protection against discrimination or harassment on the basis of age, disability, gender reassignment, marriage/civil partnership, pregnancy, maternity, race, religion or belief, sex or sexual orientation. Employers can be held liable for their employees’ actions if they fail to prevent unlawful behaviour that results in an employee suffering a loss or detriment, such as being subjected to an offensive, degrading or humiliating environment or by being forced to resign.
Expression related to sex or gender
“Hey guys”, was once considered an informal group greeting, but it has now been side-lined by many businesses as they try to adopt more gender-neutral language. Yet this move towards adopting or rejecting a particular form of language in the name of inclusivity can be met with resistance from other employees who do not share the same beliefs. For example, religion and sexual orientation are both protected by the Equality Act, but religious and LGBTQ rights can come into conflict in practice.
Gender identity is also an issue which requires considerable sensitivity in today’s workplace.
Maya Forstater v CGD Europe 2022 established that gender-critical views are protected beliefs under the Equality Act. Forstater won her employment tribunal claim, which she filed after CGD did not renew her contract after she stated on social media and in the workplace that sex is immutable and should not be conflated with gender identity3
In Mackereth v The Department of Work and Pensions 2022, when Dr Mackereth was working in the position of Health and Disabilities Adviser at the Department of Work and Pensions (DWP), whilst he was happy to refer to service users by their preferred name, he refused to address them by pronouns that differed from their sex registered at birth. His objection was based on his religious belief that people can’t change their sex. This stance was at odds with the DWP’s policy, and, following failed attempts to align positions, his contract was terminated.
The Employment Appeal Tribunal found that the Equality Act protected Dr Mackereth's belief but that no direct or indirect discrimination had occurred. The tribunal concluded that the DWP would have treated any employee who declined to address service users by their preferred form of address in the same way and that its policy was necessary and proportionate to meet a legitimate focus on the needs of potentially vulnerable service users. Permission to appeal was recently refused by the Court of Appeal.
Forstater makes it clear that employees have the right to manifest gender-critical beliefs through lawful speech and action. However, the tribunal also stressed that the Forstater decision does not mean those with gender-critical beliefs can ‘misgender’ trans people with impunity.
Given the possibility for different views to come into conflict, employers would be wise to consider how they intend to respond to any complaints about the expression of views by employees in the workplace or on social media and to put in place an appropriate social media policy to support that approach.
Match the pace of change
Cases like Mackereth illustrate the value of robust EDI policies. Nevertheless, businesses must also be willing to reinforce those policies through regular/annual training and workshops to help staff understand differing perspectives on a wide variety of issues, how their use of language has the potential to impact on others, and the importance of everyone being tolerant towards colleagues who have differing perspectives and beliefs.
A one-size-fits-all approach to language and expression won’t achieve fairness and equal opportunity for everyone. To reap the benefits of EDI, employers should strive to create a working environment where all individuals feel safe and enjoy a sense of belonging whilst at the same time understanding the need to build relationships with colleagues who come from different backgrounds and to be tolerant of colleagues who have different points of view.
Beyond the legal responsibilities set out in the Equality Act, there are other areas for employers to consider within their EDI strategy: staff with caring responsibilities, cultural considerations, family status, beliefs related to gender identity and expression, ‘invisible’ disabilities, mental health, neurodiversity, physical appearance, political opinion, and socio-economic background/circumstances.
Employers concerned about exposures from potential claims and awards relating to any of those issues can protect their business with employment practices liability insurance, which provides cover if the firm is taken to an employment tribunal; legal costs, together with most types of tribunal awards, can be covered, subject to the limit of indemnity chosen. Speak to your broker to find out the different options available.
