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Artillery Row

If you don’t have something compliant to say…

“Mandatory duties” under the Equality Act leave employers with little alternative but silent lunches

Recently I was chatting to a bloke in a bar about the high profile free-speech cases that have been hitting the news: Kathleen Stock hounded from Sussex University by the actions of trans-activists; Lisa Keogh investigated by Abertay University for saying only women have vaginas; the historian Andrew Graham-Dixon blacklisted by the Cambridge Union for doing a Hitler impression. All these cases come from Woke Central — our universities. Young people with full bellies and time on their hands have always had hot heads. They push their weight around, while the rest of us tolerate, tut-tut or push back on their excesses.

Are these free speech cases just the usual excesses of a hotheaded few at our cosseted institutions of learning, with the only difference being that captured management has become too enfeebled to push back? Or are we facing a wider free speech crisis?

Was bloke-ish banter continuing unabated in the lunch canteen?

It turned out that the bloke in the bar worked in a male-dominated, medium-sized company that I’d never heard of — a perfect opportunity to ask my burning question. Was bloke-ish banter and communal good cheer continuing unabated in the lunch canteen? He looked at me as if I were mad — of course not! When I pushed for examples he was lost for words: there is simply too much you know you can’t say, a permanent awareness of a landscape of unmentionables.

Take Brexit. He still hasn’t told colleagues he voted Leave despite 52 per cent of the country voting the same way. No-one would be willing speak in an honest or exploratory fashion about a wide range of topics: immigration, race, religion, the politics of sex or gender identity — all the controversies that currently matter. A claustrophobic chill has swept across everyday working life, for ordinary people, about the subjects that matter, indeed that are central to our democratic discourse.

The Equality and Human Rights Commission issued a press release that throws a spotlight on “where we’re at”. It relates to the Jaguar Land Rover case from late 2020. An Employment Tribunal had found that Jaguar had allowed an employee to be subjected to “a sustained course of wholly unacceptable harassment in the workplace”. It awarded “aggravated damages”.

The employee in question, Sean T, had worked at Jaguar Land Rover as an engineer for 20 years. He was based at Gaydon — a complex with some 13,000 staff. Taylor had told HR that he was transgender; he wished to dress in a male style on some days and a female style on others. The harassment amounted to a dozen comments made by different people over the course of a year, recorded by Taylor in a log.

If you can’t say “great outfit”, we are indeed in a sorry place

Examples: A male colleague: “In Gaydon today and noticed the great outfit”. Another: “Are you not fem today?” — who then went on to say that he had trans and lesbian friends and that the Claimant was “very brave”. A female colleague: “I was checking out your dress, saw it was you and my jaw dropped”. A male colleague: “How do you get around in them [shoes]? It looks hard work”. A woman said: “It’s nice to see you here in your attire. You have cracking legs”. A female colleague said: “Don’t take this the wrong way, but I saw you as the top half and it didn’t match the bottom half” then followed up with an email which said: “(and perhaps I shouldn’t put this in an email), I think you’re beautiful and standing talking with you very much increased that perception”.

There were expressions of surprise: “Oh my God!” and “Oh my God. Wow!”  This would have hurt: “Is this for Halloween?” This would have been painful: “Have you seen ‘it’?” — “I saw ‘it’ in the atrium”. This was intrusive: “So what’s going on? Are you going to have your bits chopped off?”

As Maya Forstater noted: “The majority of the comments that the tribunal judged to be harassment seem to reflect people trying to acknowledge Taylor’s new appearance. While some of them are awkward… the sentiments mostly appear broadly well-meaning”. For this aggravated damages.

If you have a male colleague who decides to come to work in a dress and you can’t say “great outfit” or “cracking legs”, we are indeed in a sorry place. Is the only response silence?

Of the “cracking legs” comment, the Employment Tribunal intoned that this would be “equally unacceptable if a male made this comment to a female”. Tell a colleague they’re brave? The Employment Tribunal said: “The Claimant was not happy with those comments… We accepted her evidence on those points.”

Why try to connect if connection is harassment? Actually, why speak when you can keep quiet?

Reading the guidance is bad — imagine living it

The most serious eye-opener was the wider Jaguar / EHRC response to the case. Following the verdict, Jaguar negotiated and then signed a legal agreement with the EHRC “to improve its policies and practices in relation to equality and diversity”. Here is what the EHRC has proudly announced that Jaguar signed up to:

“Under the terms of the agreement, Jaguar Land Rover agreed to develop an action plan to prevent future breaches of equality law. The plan, which includes recommendations made by the Employment Tribunal, commits Jaguar Land Rover to:

  • publicising its newly developed diversity and inclusion strategy internally and externally to ensure transparency and accountability
  • conducting an annual diversity and inclusion survey for staff and developing an Inclusion Index to track progress in the organisation
  • working with employees to improve its diversity data self-identification rates to enable more effective equality monitoring
  • working with an external consultant to review current diversity and inclusion practices and identifying any areas which require improvement, including taking steps to mitigate any risks of harassment identified
  • requiring staff to complete mandatory e-learning modules on diversity and inclusion and bullying and harassment within 3 months of joining Jaguar Land Rover; with supplemental training for people managers and senior leaders
  • updating its transitioning at work guidance and family policies to ensure they reflect best practice
  • updating its bullying and harassment policy and training key employee networks on how to effectively support employees dealing with bullying and harassment issues
  • launching inclusion councils at manufacturing sites so employees at these locations are engaged and have ownership of equality and diversity issues.

The EHRC will monitor the action plan to ensure the actions are completed within the agreed timescales. It can also use its legal powers to enforce the plan in the event of non-compliance by Jaguar Land Rover.”

Are you still with me? Reading it is bad — imagine living it. Mandatory e-learning modules on diversity and inclusion and bullying and harassment? Steps to mitigate “any risks” of harassment? Employees “owning” equality and diversity? No wonder people are scared to speak their minds at lunchtime.

Recently there was a little ray of light when Maya Forstater won her case to protect gender critical views in the workplace. Did the EHRC forget to mention that in its press release? Yes.

According to Chief Executive of the EHRC, Marcial Boo, “the government has announced a mandatory duty on employers to protect staff from harassment”. How? Silent lunchtimes?

Maybe we should avoid large corporate employers? Sadly, the government has you cornered: “Every employer, no matter how big or small, is responsible for protecting its workforce”.

Would free speech break-out areas be too risky?

Who will be the thought police? The EHRC shares Jaguar’s best practice:  “Furthermore, we have appointed a Board level sponsor for Diversity and Inclusion and created an Executive Steering Committee to consult on diversity matters, whilst in the last 12 months we have doubled the size of our HR team working in this area”.

Some countries make stuff. Some people in the UK want jobs making stuff. Instead, we double the size of our HR teams. And what about those of us who want robust debate and humorous banter at lunchtime? Free speech break-out areas? Too risky?

The root of all this is the Equality Act and the “protected characteristics” it enshrines. It is around these that all efforts to stifle our speech begin and end: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. On top of the Equality Act sits the EHRC. Its response to the Jaguar case indicates that its collective imagination is so deadened by the dreariness, it can only ever pour more potent poison to o’ercrow our collective spirits.

The Tories have tried recently to reform the EHRC. They brought in a new Chair. There are new Commissioners. There is a new CEO. You start to hope. Then you see the Jaguar press release and its bullet-points of bureaucracy.

Reform seems impossible. We need to repeal the Equality Act, abolish the EHRC — and start talking again. Or the future will be silence.

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