Abuse at Work: Too sensitive or crossing the line?

Are Gen Z workers more sensitive to offence? Lydia Wawiye, Senior Associate, Employment Law Solicitor, Parfitt Cresswell outlines the legal duty of care of employers.  

Different people find offence in different things. This is particularly true when you combine people from different cultures and ages, whose life experience will be equally diverse. In the work place it can mean that one generation’s friendly ‘banter’ is another generation’s reason to sue. It has been widely reported that Gen Z are particularly sensitive. What this probably means is that people in other generations do not share their reaction to the same scenarios and struggle to understand why they are upset. It’s therefore important that there is clarity on what is and is not acceptable, under the law, and that there is consistency in applying it.

The Law 

Complaints brought by Gen Z will most likely be presented as breaches of The Equality Act 2010. The ‘protected characteristics’ are race, age, sex, disability, marital status, religion, pregnancy, gender reassignment and sexual orientation. The Act defines a disability as “a physical or mental impairment that has a substantial and long-term negative effect on a person’s ability to do normal daily activities”. The Act defines four types of discrimination. 

Employees can claim ‘Direct Discrimination’ if the protected characteristic is the reason why they are disadvantaged. This can occur if it can be proved that an employer refused to promote an employee because of a characteristic, such as being too young, instead of on merit. You should therefore ensure that your managers do not inform Gen Z employees that they are too young for a role. Instead, advise them of the additional training and experience they need before they will be considered.

An employee may also claim ‘Indirect Discrimination’. This can be used to lodge a complaint against behaviour that ‘triggered’ an employee, as the definitions are less clear. To give you an example: a team event where the activity, venue or catering makes some feel excluded. Of course, people with physical disabilities need to be sensitively managed to ensure their condition is considered. However, less obviously you also need to consider any mental health conditions and neurological disorders, such as Autism. Some traditional team exercises, for example, can be uncomfortable for many of your team and introverts will need to be given time to ‘re-charge’ away from the group.

The key to avoiding issues is to get to know your team, ask questions and involve them in the planning process of any event, don’t assume you know the issues, listen to any concerns. Too often it is failure to take concerns seriously that leads to problems (e.g. “She was just being difficult”; “Everyone is allergic to everything these days”.). 

‘Harassment’, under the Act, is defined as ‘unwanted conduct’. It can include threats, nicknames, and/or inappropriate comments. Consistent or deliberate misgendering will be counted as harassment under the Act. Other examples of harassment include: spreading malicious rumours, unfair treatment and denying training. It can happen face-to-face, by letter, by email, by phone and through social media channels. Bullies will often hide behind the claim; “It was just a joke”, “They’re too sensitive”.  It’s not, it’s harassment as defined by the law. 

Finally, an employee may claim ‘Victimisation’ if they have already raised a complaint and now believe that they’re being punished for it. To avoid such charges, you need to have transparent procedures for all decisions so that, if they are challenged, you can justify your decisions.

There are exceptions to discrimination laws. These are to comply with other laws, occupational requirements, positive discriminatory action (to favour a disadvantaged group) and age concessions (e.g. Minimum wage). You can also discriminate where national security is at stake.

What can employers to do avoid litigation

Employers are responsible, and liable, for preventing bullying and harassment so don’t wait for complaints, be proactive in stopping discriminatory behaviour. Of course, some people are more sensitive than others, so you should have a private meeting with the target of any jokes, nicknames or comments to find out, from them, how they feel and act accordingly.  Make sure they feel fully validated. Even if the direct target is happy others, who share the same characteristics, can feel harassed by the behaviour (e.g. if a Christian is called a ‘God botherer’ then other religious employees may also be offended but may not immediately speak up). As a general rule, any name calling and jokes at someone’s expense should be stopped.

Employers should have clear policies in place (reviewed by an employment lawyer) that defines discrimination, with examples, and the reporting procedure. Employers should make it very clear from these policies and, just as importantly, by their actions, that they will not tolerate discrimination and harassment in the workplace. Employees need to know how to complain (the complaints procedure) and be confident that they will be heard. 

Supervisors and employees should be provided with regular equality, diversity and inclusion training that sets out examples of abusive behaviour. Offenders should be disciplined, as failure to do so will be perceived as you tolerating such behaviour.  

The new Bill

The Employment Rights Bill was introduced on 10 October 2024 and when it comes into force will expand employment rights for workers. It will impose a higher duty on employers to take “all reasonable steps” to prevent harassment. This includes harassment by third parties such as customers/clients. Therefore, employers must ensure a zero-tolerance approach.

Sensitivities do change and can be different from one generation to another. However, the guiding principles remain the same. Employers and managers need to foster a safe, respectful, workplace for all and that means being sensitive to issues that can act as a barrier to that.