Common sense v political correctness: the legal perspective

Communities Secretary Hazel Blears, recently warned against what she described as ‘creeping oversensitivity'.

While recognising that there is a line to be drawn in order to maintain respect for other cultures, she has suggested that the pendulum has swung too far and wants to encourage ‘debate about religion in contemporary life' (see her speech to the London School of Economics on 25 February 2009).

Her comments were made in the context of life beyond the work environment, but one of the examples she used was of nurse Petrie. In the Petrie matter, NHS north Somerset appears to have resolved concerns with nurse Petrie following an occasion where, as a committed Christian, she offered to pray for a patient. In January, Ron Heather, a bus driver, raised objections to driving a bus emblazoned with the slogan "There is probably no God. Now stop worrying and enjoy your life". According to reports, a sensible compromise was arrived at with his employer, First Bus.

While the Communities Secretary's encouragement for open debate is to be welcomed, employers have to set parameters, particularly bearing in mind the potential risks if an employee decides that the debate crosses the line to become unacceptable.

Organisations have a balance to maintain. There is much to be said for organisations taking the lead by introducing their own awareness-raising initiatives of other cultures, religions and belief systems, which will aid understanding within the workplace and encourage mutual respect. Such steps will also answer questions in a controlled environment which staff may feel awkward asking: for example, they may not understand why particular clothing is worn.

The legal risks

Legally there is a distinction between a debate which is participative and welcome, and conflict, criticism and comment borne out of misunderstanding or sheer ignorance. What was described as ‘creeping oversensitivity' is still a useful measure from the employers' perspective.

UK harassment laws uphold workplace dignity and prevent discriminatory comment and behaviour. Conduct and comments become unlawful when the subject considers them unwanted, offensive, humiliating or hostile. This definition protects a sensitive individual but an important caveat is that in law, the conduct must also be reasonably capable of being regarded as having a degrading or offensive effect. Only the most innocent of comments would clearly fall into the category where no reasonable person would regard it as offensive. The law allows an individual to set their own parameters of what is and is not acceptable behaviour and comment, except in the case of the most extreme or grossly offensive of comments, where an individual would not first be required to make clear that the comment and conduct is unwelcome.

The true position is that reasonableness and the individual's subjective perception is the ultimate test, rather than just common sense.

What is healthy debate?

Debate which is even-handed and considerate of sensitivities can be welcomed into the workplace. This, however, needs to be counter-balanced with clear rules and communication about what is acceptable behaviour.

As the Communities Secretary made clear, all faiths can be recognised in the workplace, neutralising the work environment. Banning symbols - for example, Christmas decorations - is not the solution. Similarly, promoting one's religion in a way which offends others would not be permitted - as for example in the case of Apelogun-Gabriels v London Borough of Lambeth ( ET 2301976/05) where an employer was found to have lawfully dismissed - not on grounds of religion - an employee who circulated homophobic biblical texts.

Lessons from recent cases

We are starting to receive guidance from the Appeal Courts particularly around religion and belief under the Employment Equality (Religion or Belief) Regulations 2003, the most recent being the case of the London Borough of Islington v Ladele [2008] UK EAT/0453/08. This is the case where Ms Ladele objected to undertaking same sex civil partnership ceremonies on grounds of her Christian belief. She complained that, in requiring her to undertake these ceremonies, her employer was subjecting her to less favourable treatment and brought a claim of harassment because of the difficulties created within the workplace in handling the issue.

What the Employment Appeal Tribunal (EAT) has emphasised is that an employer who is consistent and who seeks to uphold respect and dignity for all and their own equality standards will not go far wrong in complying with their responsibilities under the discrimination legislation. The EAT acknowledged that it would have been possible administratively to have allowed Ms Ladele an exception, but acknowledged that the council felt it was wrong to make this accommodation. It explained that in reality, in requiring her to undertake the same duties as others, the council could establish that there was no less favourable treatment of her compared to others. The EAT said, "The council refused to make an exception of her because of her religious convictions. That is a complaint about a failure to accommodate her difference, rather than a complaint that she is being discriminated against because of that difference. The council has been blind to her religion, and she submits that it ought not to have been".

Audrey Williams is head of discrimination law at Eversheds