The Employment Law Pod

Inclusivity and respectful communication in the workplace

• Season 1 • Episode 5

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Ever wondered how the shift from formal to informal language at work impacts inclusivity?
 
In this episode Andy Whiteaker and Helen Goss tell the significance of mindful language in fostering a respectful work environment. We'll dissect real-world scenarios, including the implications of calling women "girls," and debate the necessity of replacing gendered terms like "manpower" with neutral alternatives. They discuss making your workplace more inclusive through thoughtful communication. 

Further in the episode, they examine a recent tribunal case that delves into the delicate balance between workplace harassment and political correctness. Imagine a casual chat about sushi spiralling into a discrimination claim! 

Together, they discuss workplace banter and its often-hidden implications. Through a compelling case study, we illustrate how "just banter" can mask deeper issues of harassment and bullying, and the challenges faced in defending such claims. 

Tune in for a thought-provoking conversation on creating a more inclusive and respectful workplace. 

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Andy Whiteaker: 0:03 

Hello and welcome to the Employment Law Pod from Boys Turner. My name is Andy Whiteaker, I'm a partner in the employment team and I'm very pleased to say that today I'm joined once again by my colleague and fellow partner in the team, Helen Goss. 

Helen Goss: 0:16 

Hi everyone. 

Andy Whiteaker: 0:17 

And, as ever with the Employment Law Pod, we are going to be talking about some interesting stories that we saw in the news and also building into that a few things that have come across our desks recently, some matters that have come to our attention from clients. So, Helen, what specifically are we going to be talking about today? 

Helen Goss: 0:37 

Well, I think our theme is loosely inclusivity, so we're going to be looking at inclusive language, hypersensitivity, sushi and possibly pronouns. 

Andy Whiteaker: 0:49 

And why not? What a heady mix of ingredients we've got for today. So how should we start this then, Helen? What are we going to talk about first? 

Helen Goss: 0:57 

The reason that we're going to talk about inclusivity, because it's very, very important in the workplace that everybody should feel included and involved and part of the team, and very often the cases that we deal with have issues where people have felt excluded and not part of the team. So one case I've got at the moment, which is actually a frequent sort of an issue, is where somebody has complained that the men in the team refer to groups of women as girls and her issue is that this essentially makes her feel like a child and that it's devaluing the considerable skill and expertise that she brings to her role and the overall team. 

Andy Whiteaker: 1:51 

My sense of this is and I may be completely wrong here, this is just my perception of it, but that I go back to when I first started in the profession back in the late 90s. Things were maybe slightly more formal, so people were referred to this is the legal profession I'm talking about. But just generally in the late 90s things were maybe slightly more formal, so people were referred to I mean, this is the legal profession I'm talking about. But just generally in the office environment things were maybe slightly more formal. It was more sort of dear sirs, dear madam, that sort of thing. There was a way of speaking to people and that's become less formal, I think over the last 20, 30 years maybe. And so sort of loose terminology of hey guys, hey girls. That sort of thing has become acceptable on one level as we become less formal in our communication style in the office. But then that has implications, such as you've highlighted, around inclusivity and the terminology that we actually use. 

Helen Goss: 2:42 

Yes, and of course there are going to be some people who are going to roll their eyes and say, what wokery is this? And then there are others who are going to wholeheartedly agree and say, well, it's not acceptable, and who will perhaps check their own terminology, but there's no doubt that it is an important issue in the workplace and using inclusive language is an important part of that. I mean, you and I have been having a bit of a discussion, haven't we Andy, about how to address emails or address our team, for example? 

Andy Whiteaker: 3:12 

yeah, absolutely and um. So, for example, generally speaking, when I will send out um emails to the team, I will address them Hi Team, but I have in the past addressed emails to Hi Folks Now look. 

I was going to say the last president, but the last president, but one Barack Obama used folks all the time, these folks, you know, that was a part of his idiom, if you like. So folks was used quite a lot as a sort of collective noun, almost. So you think, well, if Obama can say hi, folks, or these folks, then then surely that's acceptable, isn't it? But that has led to a bit of a discussion internally about whether that's the right way. 

Helen Goss: 3:54 

It's interesting, isn't it? Because, um, I was speaking to someone, um who is an expert, um a consultant in D&I - In case you're not sure, D&I stands for diversity and inclusion and he was giving the view that folks hood have colonial connotations. So I was surprised about that. But I came back and shared that to you and we sort of talked through well, we can't say, ladies and gentlemen, because that is potentially excluding of people who are non-binary. Guys, well, some of us are women, dear, all. Well, yes, I think that probably works, although potentially it's a little impersonal. 

Andy Whiteaker: 4:42 

Hi everyone. We could go with that maybe. Yes, hi everyone. 

Helen Goss: 4:45 

What about peeps? 

Andy Whiteaker: 4:47 

Yeah, I think I was saying about informality. I think that's maybe going a bit too far, and also it makes me think of Stavros and Harry Enfield, but then maybe that's just my age. Yeah, yeah, yeah. 

Helen Goss: 4:59 

Let's drop that. The point is some of us don't mind necessarily how you address us. It doesn't even perhaps cross our minds, but the point is there are some people who are offended, and that's the whole point about inclusion. We do need to think about that. And terminology is important, and I was looking at a policy that another organisation had produced which was looking at the use of terminology in the workplace and trying to find words that were not going to offend people. They were looking at the word ‘Manpower’. Well, perhaps we shouldn't refer to manpower. We should talk about resource. Do we need to talk about something being man-made? Perhaps we should say it's artificial rather than being man-made. Man-hours, perhaps it's just hours of effort, and again there will be some people who will roll their eyes and say, oh, for goodness sakes, but it is about trying to make everybody feel welcome and part of the organisation and that they've all got a say as to what terminology is acceptable and what is not. 

Andy Whiteaker: 6:16 

Yeah, and I think the fact that you know, you and I, sitting here in our glorious ivory tower telling other people how they should conduct themselves and the terminology that they should use, the fact that you and I are then having quite serious conversations about how we should be talking to our team and the terminology that we should use, does highlight, I think, that this is that this is a tricky area to navigate, and no one's pretending that it isn't and, as a result of that, I think listening is very important, actually, and recognizing other people's perceptions, viewpoints that's part of inclusion, isn't it? And being willing to learn, I guess, and to take other people's perceptions and take them on board. And if it's appropriate to change your conduct, or to change the terminology that you use, or apologise for things that you've done in the past, then that's something that we should be doing. 

Helen Goss: 7:10 

Definitely. 

So. Come on, let's get on to sushi. Andy, you know you've been dying to tell us about the sushi case. 

Andy Whiteaker: 7:19 

OK, well, look, this was about a case that was in the press recently around again, use of language but it was more than that as well. I mean, with the greatest respect to our friends and colleagues in the Fourth Estate, often when you read something that's in the press, they will identify the particularly juicy bits of a tribunal case and refer to that, rather than digging into the deep, detailed technicalities of the particular claim as to as to why it succeeded and why it failed. 

Helen Goss: 7:51 

Well, on this case, before you even tell us the facts, I read a report in the Telegraph about it. And their headline was when every word uttered can be deemed offensive. Small talk is doomed. 

Andy Whiteaker: 8:05 

Yes, yeah, absolutely. So you don't necessarily get and this isn't a criticism but you have an opportunity in a newspaper to produce a pithy article that goes to particular crucial elements of the case rather than reporting it more broadly. And the sushi, which I'll come on to in a second, was one of a large number of complaints that was brought by this particular complainant as to how they felt they'd been both directly discriminated against and also subject to harassment. But dealing with the sushi, we'll get there now. 

Andy Whiteaker: 8:42 

This uh, one of the complaints, and the individual who brought the complaint was of Japanese descent and she complained that while speaking to her manager or one of her senior um colleagues in in the organization, uh, that senior colleague had had expressed to her how much she and her family enjoyed eating sushi, and the complainant included this as part of her claim as evidence of direct discrimination and also of harassment as well, of treating, putting her in a hostile, degrading or intimidating environment on the grounds of a protected characteristic, in this instance, race and both the direct discrimination claims failed and also the harassment claim failed as well, and and this highlights one of the important things about harassment, I think and it's the way that it's looked at by an employment tribunal, because I've just said what the what the test is. It's whether an individual is placed in a hostile, degrading or intimidating environment on the grounds of a protected characteristic and not necessarily a protected characteristic that they have, but a protected characteristic and there is a two-part test to that intent does not come into it. 

Helen Goss: 9:56 

No, and I think that that's often the defence that's given, isn't it about? Yeah, I didn't mean it. I didn't mean it that way, you know. Yeah, that's given. Isn't it about potentially insensitive or discriminating? 

Andy Whiteaker: 10:07 

Yeah, I didn't mean it that way. I can't believe that's what they thought. But intent is irrelevant. But the two-part test is in part subjective, but then there is also an objective part to it as well. And the subjective part is just well. Was the recipient of this conduct offended? Were they placed in that hostile, degrading environment? So the perception essentially was the recipient of this conduct offended. Were they placed in that hostile, degrading environment. 

Helen Goss: 10:26 

So, the perception essentially of the victim, if we can use that word. 

Andy Whiteaker: 10:29 

Exactly that. The perception of the potential claimant is the key aspect of it, not what you intended, not what you meant. But there is also underneath that, an objective test as well. Now, this has a very high bar, this objective test. But it sits around hypersensitivity. So it's got to be. It's got to be the case that a it would be reasonable, on an objective basis, for an individual to have taken offense at that. And the reason for that second part of the test is to rule out situations where everyone takes offence at absolutely everything and you think, well, regardless of my intent, that seems excessive for you to be offended by that particular thing that has been said or that particular conduct, because no ordinary person, no reasonable person, would have been offended by that. 

Helen Goss: 11:22 

Yes, and I suppose that's the hypersensitive element of it so, what was the outcome of the case? 

Andy Whiteaker: 11:27 

So, the claims weren’t successful, where the Telegraph says you can’t say anything these days in terms that’s not quite true because obviously the claim was unsuccessful in this instance. But it dos go to that perception I think, that political correctness has gone mad and indeed you can’t say anything these days can you. Which, I think my thoughts on that are twofold. But first of all, I think you referred to earlier in the in our conversation about how some listeners to this podcast might think well, this is all just mad wokery, it's. You know, it's ridiculous. You know who are these bleeding heart liberals bleating on about the, these sort of issues? Well, perfectly entitled to have that opinion, but what we're talking about here is is the law as it stands at the moment. 

Andy Whiteaker: 12:16 

So we may disagree with it and we may think that it is mad, but nonetheless, this is how the law operates at the moment and there's some expectations around both personal conduct and the conduct of businesses. 

Helen Goss: 12:30 

So in that case, didn't they find that the person who had mentioned that she and her family enjoyed sushi had essentially been trying to find areas of commonality and was essentially making small talk? 

Andy Whiteaker: 12:43 

Yeah, that's exactly right that it was, that that was what was happening here. And, um, again, that goes to that issue of hypersensitivity that you know, regardless of the intent. That was the intent, clearly, but that what we're talking about here is is not a situation where you literally can't say anything because you can be picked up on whatever you say. Um, and that comes on to, I suppose, my second point that I was going to mention about terminology and the words that we use and how we perceive it and whether indeed political correctness to use that term has gone too far. 

Andy Whiteaker: 13:20 

And it did make me think of a comedy routine that I saw many years ago by the comedian Stuart Lee, and it actually came out of an appearance that he had on a radio show I think it was a Radio 4 comedy show where he was asked to defend a particular position and the statement that was given to him was political correctness has gone, gone mad, and he rebutted that very strongly and he put quite an impassioned argument as to why he felt that that was not the case and not true. 

Andy Whiteaker: 13:50 

But there was a really interesting quote that I think that he came up with at the end to sort of justify and explain political correctness, again using that terminology very broadly. 

Andy Whiteaker: 13:59 

But he said what it effectively is is an often clumsy negotiation towards a kind of formally inclusive language and there's lots of problems with it, but it is better than what we had before and I think that's true. You know, regardless of whether we think where the lines are being drawn and the challenges and the knots we can sometimes tie ourselves into trying to make sure that we are being inclusive, trying to ensure that we are using appropriate language and that we are not placing people in hostile, degrading environments. I recognize and understand that that can be complicated and it can be tricky and it come can result in claims arising where no offense was meant, but I still think that is better than the culture that we lived in before, where people were much freer to say a whole host of inappropriate, discriminatory and non-inclusive things and place people in those hostile environments or making them feel degraded, with there being very little comeback against them. 

Helen Goss: 15:03 

No, exactly Going back to this idea of hypersensitivity or what might be termed a slightly bizarre reaction to something that somebody has said, I've been looking back at a few cases and it does seem that in trying to determine whether someone's reaction is not reasonable, in trying to determine whether someone's reaction is not reasonable, the judges have looked at the context in which comments have been made and behaviours. So a lot of people will argue oh well, no, no, no, that wasn't a serious comment, it was just banter. I mean, how often, Andy, do we hear oh, no, no, it was just banter and therefore I wasn't being rude or discriminatory or I wasn't harassing, we're just having a bit of fun, yeah. 

Andy Whiteaker: 15:56 

And that is. It's an eye roll moment, isn't it for us, when we hear that or when we look at an investigation report and someone has said, oh, that's just a bit of banter, wasn't it ? 

Andy Whiteaker: 16:09 

No harm intended. As we've already highlighted, intent is entirely irrelevant, frankly. 

Helen Goss: 16:15 

Yes, but then some of the cases did then refer to the fact that the individual making the complaint joined in and was an active participant in the banter, and I can understand that. That would potentially mean that it would be hard for them to argue that they were offended. But of course there is also the argument that when you're up against a strong group who are involved in banter, it takes quite a brave person to say, well, actually stop, I'm being offended or not get involved for fear that not getting involved will make the bullying and the harassment worse. 

Andy Whiteaker: 16:57 

Yeah, the they didn't seem to mind at the time. Difference is is not a strong one for all of those reasons. There was actually a case I was involved in a good few years ago now where an individual um brought a harassment claim on the basis of um race and sexual orientation. Now she had been dismissed by her employer after a few months, um, and it was because the employer had concluded that she had lied about certain meetings that she'd gone to and she was still in her probationary period. So they dismissed her and potentially, because she was looking around to try and find a claim that she could then pursue, she sought to bring harassment claims on the basis of race and sexual orientation. 

Andy Whiteaker: 17:46 

Now she was a straight white woman, but she said the office environment that she worked in she was on a daily basis bombarded with racist and homophobic jokes. That was just the banter in the workplace. That's what happened. And so, even though she didn't have those characteristics, she could still say that she was placed in a hostile, degrading or intimidating environment because of those characteristics, because she was offended by the racist and homophobic jokes. So she could bring that claim, even though that might seem slightly counterintuitive to a lay person. Um, during the disclosure exercise we did find emails from her to um former colleagues at her previous employer saying I love it here. It's so amazing, it's a laugh a minute, everyone is hilarious, it's a great environment to work in, you know it's. You know, I've never laughed so much, and so that that did make us think that potentially we could maybe run that argument and say well, although I just said they didn't seem to mind at the time is an appalling defence to run. 

Andy Whiteaker: 18:56 

Actually, in this instance, there seemed to be some contemporaneous evidence that actually she genuinely to now say I was placed in that hostile environment doesn't seem to stack up with the contemporaneous evidence that we had. Now, in the event, we actually settled the claim, and the reason that we settled the claim is also during the disclosure exercise we found some of the all-staff emails that were being sent round and some of the just-to-all-the-mail-staff emails that had been sent and some of the just to all the mail staff emails that had been sent and the contents of which were pretty appalling, frankly, and the client took the view we're not defending this, regardless of whether we could potentially argue that she was not genuinely placed in that hostile, degrading environment. 

Andy Whiteaker: 19:45 

We are not going into a public forum and having all of this evidence out there and having our senior managers and MD cross-examined on why we thought it was appropriate to send these emails. It's too risky, yeah the reputational damage was just potentially too great. So you can conceivably run that sort of argument, but I don't want to be in an employment tribunal saying well, all of this appallingly offensive and racist stuff that we said they didn't seem to mind at the time. 

If that's your argument, first of all you're on the back foot and secondly, that's bearing in mind employment. Tribunals are public forums. Also, now all tribunal cases are all published, all the judgments are all published online as well. They're public documents and, as we've discovered from the sushi case, for example yeah, there are journalists are employed to sit there and look at the new cases that are published every day and decide whether there's anything juicy in there that they might want to report on. 

Helen Goss: 20:29 

Exactly um, again, going back to this issue of hypersensitivity, I think that, harassment, you need to take into account the cumulative effect of several acts of harassment, and so they might perhaps be of themselves, each individual one perhaps not so serious, but it's when then you get the group of them, and it's one after another, after another, that then the full effect of whatever that harassing um behaviour is takes effect, isn't it? 

Andy Whiteaker: 21:18 

yeah, yeah, that that's absolutely right, and so you know. It's almost similar in some ways, as opposed to that last straw argument in a constructive dismissal claim, where there might be one thing that forces the individual to finally resign and walk out, and you think well, because someone took their pencil sharpener. You know how can that possibly be the thing? But it's not that thing in itself. It's the cumulative effect of everything that's come before that. 

Helen Goss: 21:42 

Yeah, one of the cases that I was looking at when I was doing some prep was a case from a few years ago, again in the tribunal, and the individual who was female, who was bringing the claim, had argued that her manager was harassing her and that he had overly sexualized behaviour towards her and that he had sent her an email that that had in it two exes which she said represented kisses and that he he wanted to kiss her and that he was essentially telling her in this email that that's what he wanted to do and that, to her, was alarming. 

Helen Goss: 22:28 

And they reproduced the email that he had sent and it was along the lines of you know, dear Jane, I want to go back to the client, but I've produced a draft email and there are a few gaps in it, which I'd really be grateful if you could fill in the gaps for me so that we can send the email. And he'd referred to something like um further to your email dated xx, because he couldn't remember the the date of the email, and that she said that she believed that this was some subliminal messaging, that he wanted to kiss her and of course, you would have to take that in the context of all the other behaviour that he had demonstrated towards her. But I think even in that case the judge's eyes were rolling in respect of that. 

Andy Whiteaker: 23:22 

Yes, who was most distressed when he received an email that was signed off lol and he didn't realize that it meant um, laugh out loud. He thought it was lots of love and he was very, very distressed that a client was saying lots of love to him. But anyway, we'll move on. 

Helen Goss: 23:47 

We did explain it to him, it was fine, we explained it, didn't we we? 

It was fine, we explained it to him. 

So can we just talk a little bit about pronouns? Sure, because we are seeing a lot now that, particularly on email sign-offs or on LinkedIn, particularly, that the sender of the email has their pronouns, and the most common pronouns that you see are either she, he or they. 

Helen Goss: 24:21 

Apparently there are others, but, as I say, the most common ones that you see are she, he or they, and I think a lot of businesses are trying to work out whether that is something that they should be doing or not, and I think a lot of businesses are saying well, it's a personal matter for the individual as to whether they want to do that or not, but it's again another argument in terms of inclusivity, isn't it so that you can bring your authentic self to the workplace and that you can publicly I don't know sort of signpost? This is who I am and therefore I'd like you to use the pronouns that I consider are appropriate to me yeah, and I think it is something that we discussed internally as well. 

Andy Whiteaker: 25:10 

I know you sit on our on our ED&I  group and I think it is something that we discussed internally and I think that was the conclusion that we came to internally, wasn't it that? It was entirely a matter for individuals if they wanted to do that, and if so, there would be a formal sign off that they could use. That would include their pronouns, and that was something we put together. 

Helen Goss: 25:28 

Yeah, but there have been some cases haven't there where people have refused to use the relevant pronoun, which is in the case of the matters that go before the tribunal in relation to non-binary people who prefer to be referred to as they or them. 

Andy Whiteaker: 25:50 

Yeah, and then we start onto this topic and we get into the very murky waters of all these extraordinary twitter spats of celebrities falling out with each other and arguing at great lengths and being cancelled and because of the them taking very entrenched views on these positions either one way or the other and it causing, you know, considerable distress, and I think that just that highlights again that this is, this is an issue that does cause strong feelings for people 

Helen Goss: 26:25 

And you know the rolling of the eyes which we seem to have referred to quite a lot um, today it's not fair, because a lot of people have had to really struggle to find their authentic self and therefore the use of a certain pronoun to help them feel included and part of the team seems a very small thing to do if it's going to mean such a huge thing to that person. So we come back to a happy workplace or work team is one where everybody feels included and valued within it. 

Andy Whiteaker: 26:54 

Yeah, and I think that goes back to what we were talking about at the start around the need to just listen and be open and to learn not to judge, to try to understand and to try and include where you can. 

Helen Goss: 27:07 

Yeah, absolutely. 

Andy Whiteaker: 27:09 

But, at the same time, what we're not talking about is the end of the ability to just speak to people. We're not talking. We've highlighted issues around hypersensitivity and how it's not the case that everything you say will get you in trouble and that you'll be found liable for any minor misdemeanour or any misstep that you might make or to misspeak in a particular way, and that's certainly not what employment law requires and it's not what we as a society require either, and we want to continue to, to live in a, in an environment where people are free to to speak and to engage and to converse with one another. And I think you found a. You found a really nice from Giles Brandreth on this point. 

Helen Goss: 27:49 

Exactly, Giles Brandreth, a great sage. What he said was the purpose of small talk is not to be controversial, clever or even interesting. It's simply to fill the silent void with a small gesture of common humanity. So it's a spoken smile or a verbal handshake, and I think that's quite a nice point to end our podcast, isn't it? 

Andy Whiteaker: 28:15 

I think so too. So, look, all that remains is to say thank you once again, Helen, for your time, thanks, Andy, and to thank all of you for listening, and if you haven't already done so, please do follow or subscribe to this show wherever you get your podcasts.