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Employment risks associated with employees bringing their whole selves to work

Now that diversity and inclusion have been elevated to commercial imperatives, the mantra “bring your whole self to work” is becoming business as usual.

The problem is that if everybody does just that, a workplace can turn into an arena for potentially competing and conflicting views, where individuals offend and become offended. The Brexit debate and the recent US Supreme Court judgment in Roe v Wade on abortion highlight how both sides of the argument can find the views of the other unpalatable or even offensive.

Two recent employment cases on gender-critical beliefs (Higgs v Farmor's School and Forstater v CGD Europe), demonstrate the challenges employers face in managing conflicting views. The gender-critical belief holds that the biological sex of an individual is immutable, and is not to be conflated with gender identity. This stance is offensive to many in the transgender community, their allies and others.

For employers, it is challenging to navigate a path through the right to freedom of expression in a personal capacity with the disputes they may generate in a workplace. Of course a workplace culture in which employees can be authentic is to be encouraged, but this does not mean that being disrespectful to colleagues can be tolerated. The right balance can only be achieved if employers take proactive steps to ensure that that everybody is clear about the right to dignity at work, where the boundaries lie, and the consequences for crossing the line.

We have put together a list of actions for employers to foster the right environment and to also mitigate the risks.

Action points

  • The tone from the top is critical for a healthy culture. Ensure that senior management are living and breathing the business’ values and treating everybody with respect.
  • Line managers should be trained to be vigilant for potential conflicts so disputes do not escalate, and are managed appropriately through workplace mediation or otherwise. 
  • Revisit your social media policy, ensuring it is up-to-date, incorporates the latest case law and is easily accessible by employees. Without training, many employees think they are free to express their views in their private lives, and these expectations need to be managed. While it is advisable to include guidelines to make it clear that views should not disparage the employer or bully or harass any staff or third parties, an outright ban on expression of personal views would likely be an affront on freedom of speech.
  • Dignity at work and anti-harassment polices need to refreshed regularly with relevant examples, including examples relating to employees holding philosophical beliefs.
  • Do not merely update your policies. Make the training relevant with meaningful examples. 
  • Perception precedes reality, which is why when employers make decisions (whether as part of an investigation, disciplinary process or otherwise), it is important to consider and address any perceived conflict of interest from the outset.

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