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Discriminatory Language and How to Avoid it
It’s easy to overlook the impact language can have, especially with the fast-paced nature of the current working world. Language is powerful though, and choosing your words poorly in the workplace could result in your employer being on the receiving end of an Employment Tribunal claim.
In the UK, employees and workers are protected from discrimination based on nine protected characteristics: race, sex, disability, age, gender reassignment, marriage and civil partnership, pregnancy and maternity, religion or belief and sexual orientation. This protection is enshrined in the Equality Act 2010 and this Act also provides protection against harassment and victimisation.
Pregnancy and maternity is the most heavily protected of the characteristics. Employers have numerous obligations to pregnant employees and those on maternity leave. It’s important for employers to not only understand what those obligations are, but to ensure the language they use when carrying out those obligations is appropriate.
This was highlighted in a recent case (the Employment Tribunal provided its judgment earlier this year) in which stereotypical comments made about a pregnant employee resulted in her winning a discrimination and constructive dismissal claim against her former employer. In the case of Ms N Hinds v Mitie Limited, Ms Hinds (the Claimant) successfully argued that her working relationship with managers became difficult after she announced her pregnancy, continuing through to her return after maternity leave. In one email, her male line manager referred to her as “very emotional and tearful”. The Employment Tribunal considered that she had been stereotyped by him as “an emotional, hormonal, pregnant woman and that in the particular circumstances his description of her as emotional and tearful was dismissive and belittling”.
The line manager’s remark was considered alongside other actions and omissions by him and, despite asserting in his witness statement that he was sympathetic to Ms Hinds’ plight, the Tribunal determined that he had been unable to provide a non-discriminatory explanation for either his email or his treatment of the Claimant. The largest compensatory sum to be awarded to Ms Hinds (compensation in respect of her past and future loss of earnings between 6 September 2021 and 5 April 2025) is still to be decided at a future hearing. She has, however, already been awarded £6,528 as a basic award, £20,000 as compensation for injury to feelings, and £7,123.29 by way of interest on the £20,000 sum. This case has already cost Mitie Limited over £33,000 in awards (with more to come) not to mention legal fees, management time and reputational damage.
It’s clear from this case that language laden with stereotypes or assumptions can have serious consequences. It’s important therefore to ensure employees, especially managers, are educated on the power their words can have. Their words and actions reflect the culture of the organisation and so it’s worth reviewing with managers the importance of being mindful of what they say.
So, what steps can employers take to avoid discriminatory language and foster inclusion in the workplace?
First, and in my opinion most importantly, employers should develop clear and comprehensive policies that set out explicitly that discriminatory language and behaviour are prohibited. Anti-discrimination and anti-harassment policies make very clear what is expected of employees in the way they behave and use their words. They can also be used to provide definitions of discriminatory language and examples of unacceptable behaviour.
Employers should also consider providing training. Regular diversity, equity and inclusion (DEI) training can educate employees about the importance of respectful communication as well as improve employee understanding of unconscious bias and their ability to recognise and avoid discriminatory language.
For these measures to be effective though, employers must lead by example and promote a positive work culture. Leadership and management must consistently model respectful and inclusive language while encouraging open discussions among employees at all levels, especially about the important of DEI.
Finally, employers should implement reporting mechanisms and enforce consequences, which can be set out in the anti-discrimination or DEI policy. Establishing clear, confidential reporting procedures for employees to report instances of discriminatory language or behaviour ensures employees can feel safe and supported when making reports. Employers should then properly investigate any reports and apply consistent disciplinary action when violations of the anti-discrimination policies have been proved. Publicising the consequences of discriminatory behaviour (up to and including termination of employment) in your policies is likely to deter potential offenders.
By implementing these measures, employers can create a more inclusive and respectful workplace, reducing the likelihood of discriminatory language and fostering a positive working environment for all employees.
If you don’t have a DEI or anti-discrimination policy in place or you would like to talk to us about our DEI training, please don’t hesitate to reach out to the employment team at MBM Commercial – we’re more than happy to assist.
