Managing a clash of rights in the workplace – recent cases and legal consideration

Allen & Overy LLP

In the third instalment of our equality and discrimination blog series, I explore how to deal with the growing issue of addressing conflicting rights in the workplace. This is one of the most difficult challenges for employers, at a time where workers are encouraged to bring their authentic selves to work.

Two recent Employment Tribunal decisions highlight the dilemma as employers in both cases were required to manage very sensitive and competing rights on (1) the validity of transgender identities; and (2) Anti-Zionist views.

Employers are grappling with a rapidly developing area of law, with a growing number of beliefs being held by Tribunals to be protected ‘philosophical beliefs’ under equality legislation. Protection of those beliefs is underpinned by the fundamental freedoms of individuals under human rights law, in particular freedom of expression. In modern society, debate on controversial rights-based issues is commonplace, and employers are seeing more of that debate entering the workplace, but with limited ability to restrict what employees can say, unless it is objectionable. In legal terms, what is objectionable is a complex and very high bar.

In practice, this means two employees can hold diametrically opposed views and can express these views, even if they are offensive to the other, provided they are respectful. That is not an easy equation if you are managing disputes or educating a workforce on their responsibilities in this area.

Please see full publication below for more information.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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