Ten tips on balancing competing rights in the workplace

Balancing the rights of all individuals within an organisation is a significant challenge for employers. Here are ten tips to help navigate that challenge and avoid potential conflicts in the workplace.

1 Recognise that all protected characteristics are equal

The Equality Act 2010 (EqA) provides protection against discrimination as well as harassment and victimisation in relation to a number of ‘protected characteristics’ – age, disability, gender reassignment, marriage/civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Employers should recognise that there is no hierarchy whereby one protected characteristic can take precedence over another under the EqA.

2 Remain objective

Employers should always seek to remain objective when dealing with competing rights in the workplace and not be swayed by the subjective beliefs of any individual, including those in positions of authority.

3 Remember that the scope of protected beliefs is wide

Case law has established that a belief can be protected even where controversial or unpopular. One element of the test to determine whether a belief is protected is that it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. In the Forstater case the EAT held that only beliefs akin to Nazism or totalitarianism, or which espouse violence and hatred in the gravest of forms, would fail the test of being worthy of respect. The case serves as a reminder to employers that beliefs which some people may find shocking or offensive may be protected under the EqA.

Employers should therefore remember that the majority of beliefs will satisfy the test and be protected.

4 Use workplace policies and procedures along with staff training to instil a culture of dignity and respect and to foster an inclusive workplace

Employers should use workplace policies and procedures along with staff training to instil a culture of dignity and respect and to foster an inclusive workplace. In doing so, they should recognise that sometimes the organisation and its staff will need to tolerate views they do not agree with, but make it clear that everybody should be treated with dignity and respect and is still expected to comply with certain minimum standards of behaviour in the workplace. Employers should:

  • Review policies and procedures and ensure they clearly set out the standards of behaviour which are expected of staff to ensure everybody is treated with the same dignity and respect, and that respect at work is emphasised.
  • Review social media policies. Consider asking staff to make it clear that views expressed on social media are their own and emphasise the importance of being respectful of others.
  • Consider the language used in policies and procedures carefully. It will also be important to consider the wording of any public statements carefully.
  • Ensure that clear boundaries are set at the start of training sessions to avoid unacceptable behaviour – training may lead to debate and it will be important to emphasise the need to respect others to avoid potential conflict. Ensure that any external training providers also operate on the same basis and can effectively manage debate between staff.
  • Provide specific training to managers on resolving workplace conflict so they have the confidence to deal effectively and proactively with conflict as soon as possible.

5 Consider making adjustments to accommodate beliefs

 Making adjustments to accommodate beliefs will help to foster an inclusive workplace. Employers should think about where it may be possible to be flexible and accommodate a belief. As well as policies and procedures consider access to facilities and services so that all feel comfortable, respected and safe.

Be mindful of the fact that an inclusive workplace is one that is inclusive to all. If an employer gives particular support to a group or cause it should be careful not to inadvertently alienate staff who are not aligned to those views.

6 Have a conflict resolution plan

The CIPD recommend that the focus of employers should be on developing early and collaborative ways to resolve conflict, rather than a more reactive and compliance led approach which handles individual disputes as they occur. Helping people to address conflict at an early, informal stage is more likely to foster dialogue and a mutually acceptable outcome for those involved.  This is where manager training is key, in recognising and addressing potential conflict at an early stage.

Employers should have a clear process in place for addressing conflicts that arise. Honest, open and respectful discussion can often resolve disputes on an informal basis and before formal procedures are invoked.  Employers should remain impartial and objective and not challenge the right of an individual to hold their own views, rather discuss the impact those views may have on others.

7 Do not confuse the expression of a belief with an intention to discriminate

Just because somebody expresses a particular view does not mean they will discriminate on such grounds. Employers need to recognise the rights to freedom of belief and expression which can only be limited to the extent prescribed by law, in pursuit of a legitimate aim and necessary in a democratic society.

8 Distinguish between conduct and religion or belief

When deciding when to take action to prevent or rectify conflict in the workplace, employers need to ensure that action is not taken because of a worker’s religion or belief. This would be direct discrimination. However, if the reason an employer takes action against a worker is not because they hold a particular religion or belief, but because of the objectively inappropriate way in which they have manifested their religion or belief, that will not amount to direct discrimination (subject to the points below).

9 Examine whether actions are an objectively inappropriate manifestation of religion or belief, in doing so consider context

When considering whether the manifestation of a belief is justifiably objectionable employers should consider factors which include: content and extent of manifestation; tone and language used; understanding of the likely audience; extent and nature of the intrusion on the rights of others; reputational impact; any power imbalance between the individual and those whose rights are intruded on; the nature of the employers business.

Determining whether something is objectionable will be context specific and it is very important for employers to consider the context in which an individual has expressed their views.

10 Apply the proportionality test

Employers will also need to make sure any intended action is a proportionate response by applying the proportionality test and balancing the right of the individual to manifest their religion or belief and to freedom of expression against the factors which allow restriction.