Last week the Queen Consort hosted a ‘Violence against Women and Girls’ reception at Buckingham Palace. One of the guests was Ngozi Fulani, of Sistah Space, a domestic abuse charity. She had a short, uncomfortable, conversation with Lady Susan Hussey (the late Queen's lady in waiting who is 83 years old) which resulted in Lady Hussey's resignation following accusations of racism.
What did Lady Hussey say?
It's worth setting out the entire conversation. Ms Fulani said that Lady Hussey approached her and moved her hair to see her name badge before asking:
Lady SH: Where are you from?
Me: Sistah Space.
SH: No, where do you come from?
Me: We’re based in Hackney.
SH: No, what part of Africa are YOU from?
Me: I don’t know, they didn’t leave any records.
SH: Well, you must know where you’re from, I spent time in France. Where are you from?
Me: Here, UK
SH: No, but what Nationality are you?
Me: I am born here and am British
SH: No, but where do you really come from, where do your people come from?
Me: ‘My people’, lady, what is this?
SH: Oh I can see I am going to have a challenge getting you to say where you’re from. When did you first come here?
Me: Lady! I am a British national, my parents came here in the 50s when…
SH: Oh, I knew we’d get there in the end, you’re Caribbean!
Me: No lady, I am of African heritage, Caribbean descent and British nationality.
SH: Oh so you’re from…
Did Lady Hussey do anything wrong?
I don't think many people are suggesting that Lady Hussey intended to insult or offend Ms Fulani. But that's not the point. She refused to accept Ms Fulani's response that she was from Hackney and her prolonged questioning about where she was "really from" implied that Black people couldn’t really be British. The encounter left Ms Fulani feeling as though she had been "interrogated" and made her "unwelcome in her own space".
Lady Hussey's comments are a form of micro-aggression (more on that below) and I'd have expected someone in her position, who meets and greets people regularly, to have had some training on what not to say when making small talk with strangers.
Lady Hussey attended the event as part of the Royal household and was not an employee. Given this is an employment law blog, let's assume that the conversation took place between colleagues or between an employee and a client or customer. Could an employer take disciplinary action against the employee who made these comments or even dismiss them?
The Equality Act 2010 protects individuals from harassment related to a protected characteristic (such as race). It occurs where a person (the employee in this context) engages in unwanted conduct and has the purpose of effect of:
- Violating the worker’s dignity or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker
Unwanted conduct covers a wide range of behaviour, including spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks and other physical behaviour.
The word ‘unwanted’ means essentially the same as 'unwelcome' or 'uninvited'. ‘Unwanted’ does not mean that someone must object to the conduct first. Some types of conduct will, self-evidently, be unwanted. And, although harassment often involves more than one incident, a serious one-off incident can amount to harassment.
The person who is causing offence doesn’t have to intend to do so. It’s the impact on the ‘victim’ that counts. And provided their reaction is not extreme, they will be protected even if someone else wouldn’t have reacted in the same way. It’s therefore no defense for someone to say that they didn’t mean to offend the other person.
Employers should of course, take action against staff members who harass other people. This can include asking them to attend refresher training and/or disciplining them. In serious cases (including where the employee has repeated conduct they've already been warned about) they can dismiss.
What is a “micro-aggression”?
Microaggressions are the thinly veiled, everyday instances of racism, homophobia, sexism etc that we all encounter or see. These include insults, throwaway gestures or repeatedly being asked the same question because the answer you give is not the one the other person expects. It's often unconscious. The person making the comment/gesture may not be aware that they have made other people feel uncomfortable and, if challenged, may say that they've done nothing wrong or their words have been misconstrued/taken out of context etc.
That's why it's so important to include micro-aggression as part of your diversity and equality training (EDI). You can achieve this by:
1. Training staff to acknowledge and recognise their unconscious biases
We all have biases and personal experiences that lead us to think in a certain way or make certain assumptions without realising why we do this. Providing unconscious bias training will help your staff understand and recognise their own prejudices and start to tackle them. This goes hand in hand with tackling microaggressions which often stem from unconscious biases.
Although there are some good online training available, this type of training is often better delivered face to face to encourage discussions, answer questions and reach consensus. Even if you are satisfied that your staff have been properly trained, it's a good idea to offer a refresher from time to time as training can become stale and people's memories fade. It's particularly important to do this if you've seen an increase in the number of complaints about staff behaviour.
If you have employees whose job it is to network and meet new people, make sure that they can confidently engage in small talk without giving offense. When we are nervous, we can find it more difficult to talk to people we don't know or know well. Everyone can put their foot in it from time to time. But knowing what to avoid and how to open a conversation will improve confidence and make it less likely that someone will inadvertenty offend the person they are talking to.
2. Referencing micro-aggression in your diversity policy
Does your policy include examples of harassment? Do these include micro-aggressions? Have you explained what this means and provided examples to help to your staff understand the issue?
3. Taking a clear line on “banter”
‘Banter’ is defined as the playful and friendly exchange of teasing remarks. It sounds relatively harmless doesn’t it? And in some contexts it might be. If you are with your friends, making fun of each other may be part of your shared history. However, in the context of work, different considerations apply. Workplaces are not playgrounds, and you need to explain that you expect all staff to be professional and to treat their colleagues with respect and courtesy.
Make it clear that they should avoid:
- Making personalised comments or jokes about colleagues (or their families)
- Using sexist, racist, homophobic, transphobic, ableist, ageist terms or comments etc
- Making assumptions about other people based on what they look like, what they believe in or about their abilities
- Insulting other people
Obviously, line managers should step in if they witness inappropriate behaviour. But, the buck shouldn't stop there. All staff should be responsible for helping to make the workplace welcoming to people who are different from them and to recognise, and take steps to call out, unacceptable behaviour. Bystander training will help your staff develop the confidence to intervene and will help your workplace become a better place to work.
4. Creating a positive culture
The UK is culturally diverse. If you embrace difference and include everyone, regardless of their background, identity or other circumstances you will find it easier to retain staff and attract skilled people. Implementing good equality practices will also reduce the likelihood that you will unlawfully discriminate against other people, which will reduce legal claims and make it easier to defend any that are brought.
It's important to raise awareness of all types of discriminatory conduct, including microaggressions and to promote positive conversations around EDI. One option is to encourage your staff to start their own diversity network groups as this will encourage discussions and create a forum where employees feel able to speak freely. Make sure that the network has a line into management so that they can feed in ideas to improve to the business.
5. Keeping records
Keep copies of your policies, training materials, records of attendance (including pass marks if appropriate) and action that you have taken in response to complaints etc. As an employer, if you want to raise the ‘reasonable steps’ defence, you will need to demonstrate that you have done everything that you reasonably can to avoid discrimination. If you update your EDI policies, the tribunal will also want to know how you communicated this to your workforce.
How we can help
We offer bespoke training on EDI and unconscious bias.
We also have a suite of 'back to basics' training for line managers which are designed to equip them with the tools they need to proactively manage the key employment law issues they encounter in their day to day lives, identify key risks and know when to raise these with HR at an early stage. This includes a module on equality and diversity.
The online format means that modules can be accessed at any time and completed at each manager’s own pace – perfect for busy schedules. Most modules come with an accompanying workbook allowing managers to put their knowledge into practice.
As there’s no limit on the number of managers that can access the modules once purchased, this is a cost-effective option for you to upskill line managers. The training would also be suitable for junior HR professionals.
You can find more about the training here and Jenny Arrowsmith can answer any other questions you have.
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Ms Fulani also rebuffed suggestions that Lady Hussey's remarks had anything to do with her age. "Let us be clear what this is. I've heard so many suggestions it's about her age and stuff like that, and I think that's kind of a disrespect - an ageism kind of thing. "I have to really question how this can happen in a space that's supposed to protect women against all kinds of violence. "Although it's not physical violence - it is an abuse."