Sensitive issues in the workplace

A diverse workforce will give rise to a host of complex issues, each requiring particular consideration. For example:

• If a conflict arises between two employees with apparently conflicting social or religious views, how can this tension be reconciled? Freedom to manifest religious belief is not absolute, and may be outweighed by competing considerations such as freedom of speech or sexual orientation, which also enjoy legal protection.
• How can the impact of evolving social media use be managed consistently, fairly and without negative impact on the business? Whilst the rise of social media has created undeniable benefits, it also provides a new platform for behaviour, which an employer may reasonably consider to stray outside of purely personal use.
• How should the employer balance the effects of long-term employee absence against the need to act supportively and fairly towards the absent employee? Employers are used to coping with employee absences, planned or unexpected. Yet, whatever the cause, the business impact in terms of cost and service delivery may be difficult to ignore. Common to each of these issues is a lack of a straightforward outcome. The challenge for employers is to find an effective solution that promotes employee engagement and minimises legal risk.

What are the legal implications?

A disgruntled employee who feels that they have been unfairly treated or discriminated against may complain to an Employment Tribunal that they have suffered unlawful discrimination. If so, the employer’s involvement with the issue to date, or lack of it, will come under close scrutiny. Anti-discrimination and equalities duties are wide-ranging, and cover religious belief, sexual orientation, disability, and pregnancy and maternity leave.

An employee who has been dismissed, for example due to misconduct or ill-health, or who believes that they have been treated so badly that they had no choice but to resign, may of course complain that their dismissal was unfair.

An employee may also claim that their dismissal itself was discriminatory. Using the first example above, the employer might decide to dismiss one of the employees on the basis that they had failed, owing to their religious views, to adequately respect the sexual orientation of a co-employee. Whilst the employer may feel justified in the action they have taken, this could result in a claim that the dismissal was an act of religious belief discrimination.

If the employee’s claim succeeds, the employer will be forced to pay compensation and could be ordered to reinstate a dismissed employee. Successful discrimination claims result in uncapped compensation awards, and may lead to serious reputational damage for the employer’s business.

Key practical steps

Avoid delay and try to act consistently:

• In a dynamic, delivery-focused environment, speed and consistency are critical to resolving workforce problems when they arise.
• Ensure that relevant policies (including on specific issues such as social media use) are implemented and regularly updated – remember to keep these as clear and flexible as possible.
• Encourage managers to hold difficult conversations with staff, and provide them with training on equality and diversity issues.
• Consider workplace mediation as a means of resolving conflict before it escalates.

Who can help?

Following these practical steps can help keep sensitive employee issues manageable. For external support, the national conciliation service, ACAS, provides helpline support and mediation services.

For specific advice and guidance on how to pre-empt some of these issues, contact the employment team at asb law.

Laurie Child is a solicitor in the employment team at asb law
asb-law.com/employment