On 15 May we posted a piece on a case about the importance of context on workplace discussions which might otherwise sail close to being discriminatory. As if by magic, Acas has now issued some new Guidance which includes comment on the same point: “Religion or Belief Discrimination – Key points for the Workplace”.
In reading the section on “Talking about religion or belief at Work” you are left with the faint feeling that an assumption has been made that if you hear something at work about your religion or belief that you don’t like, you are already well on the way to actionable harassment. There seems little encouragement to any recognition that sometimes other people just hold views which differ from yours and that they are as entitled to talk about their beliefs as you are about yours. There is no suggestion that the employee on the receiving end should ever just write it off among the dozens of other irritating things one might hear each day. No points for turning the other cheek in this Guidance!
Acas advises against an outright ban on discussing religion as “non-inclusive”. [More pragmatically, it would also be substantially impossible to enforce]. However, it does allow the employer to consider restrictions to protect the rights of others or the firm’s reputation, or to “prevent a figure of authority forcing their personal views on others, e.g. an executive on a junior employee“. More specifically it continues “An employee forcing their religion or belief on other staff…who do not want to hear their views or join their following could cause offence or make them feel harassed“.
OK, but there is obviously a world of difference between a civilised agreement to disagree in religious matters and anything which could reasonably be construed as “forcing”. Have a look for a cracking example of the latter. “Forcing” would include repeating remarks or invitations once it was tolerably clear that the other party wasn’t interested, or crossing the line from talking in positive terms about one’s own beliefs to criticising the faiths of others. It would also include excessive generalisations (“All you atheists…”), or accompanying superficially harmless sentiments with excessive emphasis or bad or insulting language. “Forcing” would not include the repetition of phrases in such common usage that they have effectively lost their religious significance – “Oh my God”, and the like. The Guidance warns against pandering to over-sensitivity in this respect, but the safer bet will be to consider such allegations and reject them rather than dismiss then out of hand.
With echoes of Bakkali, the Guidance also says “A colleague who is offended may claim harassment. However, if that colleague starts a discussion with an employee when they know they disagree with their views and the employee then expresses those views, that colleague is less likely to be able to claim harassment”. That is right and true, but the proper question in such circumstances is strictly not who started the conversation or who knew what, but whether it is reasonable to contend that your dignity is genuinely being violated or your workplace environment rendered intimidating, hostile, humiliating or offensive by the words or conduct of the other employee, bearing in mind that we all suffer slights and irritations at work every week, (or at least I do) without feeling the remotest need to do anything legal about it. Hearing something you disagree with, even about your religion, is just not the same as being intimidated, humiliated, etc.
However, if you really cannot let go of what has been said to you, what is the employer’s best response? Implement formal grievance and disciplinary proceedings and thereby reinforce each party’s antipathy for the other and all they stand for? The new Guidance sensibly suggests that course only where there are reasonable grounds to believe that the language has been used maliciously. In all other cases, the vast majority where affront is caused merely by ignorance or misunderstanding, Acas recommends an informal approach. The problem with such an approach is the obvious one – that it only works if it works. As soon as there is any recurrence, you will be off down the path of not having taken the complaint seriously enough, such that you too now stand accused.
A better alternative might be to require that the parties sit down together like adults for (if mediation is too strong a word) a “facilitated discussion” about the religious aspects of what was said and why, so that they can go forward as continuing colleagues on the basis of a better understanding of each other. The benefit of this is two-fold. Firstly, it is vastly cheaper, less confrontational and more effective than formal processes. Secondly, it draws out those whose strength of belief has caused them to lose touch with the reality of being with others in a common workplace. Whatever your religion or belief, there is rarely any excuse for refusing a discussion with a colleague aimed at setting things right. Except in the most extreme cases where the offender clearly ought to be dismissed, the employee who declines to participate in that process may turn himself into the problem even if he was originally the person alleging the upset.