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Should tribunals stand up to employee ‘hypersensitivity’?

Consultancy 17th August 2021

Recent years have seen a strong tide towards protection of employee rights in employment tribunals, a heightened awareness of any form of discrimination, the damaging effects of throwaway remarks.

Now more tribunals are signalling the need for balance. If we keep on going this way, they say, we’ll have a culture of hyper-sensitivity in workplaces – where one thoughtless comment, a well-intentioned joke, could be used as grounds for legal action. A culture where bosses, managers and staff are frozen by the need to be ‘correct’ in every word used. Where conversations feel monitored, becoming stilted and limited to the bare essentials. Conversations on a ‘need-to-have’ basis.

The tribunal was dealing with a number of complaints of harassment from an employee against a former employer. The legal firm had offered her a role at their head office in Switzerland which she had turned down for ‘personal reasons’. Bosses asked her why she had turned the position down: “You are not married, you don’t have children and you do not have a boyfriend”, and went on to talk about ‘tolerance’ of a lesbian staff member in the Swiss office. Subsequently when she looked for a promotion she was turned down because it was argued she was “not performing at the same level as the group’s senior legal counsel”. The employee complained that she had been subject to sex discrimination, sexual harassment or harassment related to sexual orientation by perception, along with age discrimination and age-related harassment.

The complaints were dismissed. The comments were “unfortunate and awkward”, but, it was argued, shouldn’t be seen as constituting discrimination. The verdict is generally accepted as being another example of how employers can defend themselves against claims of discrimination — but is not yet considered to be a legal precedent.

Does this mean managers can get away with occasional slips, with ‘careless talk’? 

Employers need to demonstrate they are meeting their side of the deal, that they are trying to create a balance between being open in dealing with difficult situations, while at the same time having empathy for employees. The cultural climate is encouraging more awareness of grounds for discrimination and less tolerance to thoughtless use of language and humour: HR has to be ready to prove it is being pro-active and provides best practice.

That means moving beyond education on discrimination and cultural awareness. Understanding that there are sensitivities doesn’t mean an ability to talk about them and deal with individual people and cases in professional ways. It means equipping managers in particular — but also staff in general — with the skills to deal with difficult conversations. Making sure people have the self-awareness and confidence to take part in sensitive and awkward conversations without becoming bullish, defensive or skirting around the core issues. It’s what we call ‘Conversational Integrity’, the package of skills that leads to confidence and ability, including ‘situational awareness’, the essential practice of ‘curiosity’, ‘reflective listening’, ‘empathy’, and ‘self awareness’ – so not just listening outwardly but inwardly, how your own ‘inner state’ is impacting on the flow of the conversation.