Sometimes people mistakenly believe that equality law has a ‘pecking order’ and that one person’s rights can be better supported than another’s. Most of the time, this belief comes from personal prejudices that the person might not even be aware of – prejudices that make them feel they should have greater rights than others, or that the rights of other people are taken too seriously in comparison to their own.
In fact, a human rights approach to equality combined with an understanding of how case law treats ‘competing’ rights makes the situation very clear. Managing these conflicts is essentially all about the ‘balance of harm’. In our organisations, if we come up against what appears to be a conflict of rights, we can ask ourselves:
- What impact are the individual’s actions having on the other person, other colleagues, our reputation and our services?
- What is the ‘balance of harm’ that results from what is going on?
- What ‘balance of harm’ would result from the courses of action open to us (for example doing nothing, taking action to support an individual, taking action to discipline an individual)?
There have been many legal cases involving religion and belief in particular which explain this approach. The main point to remember from these cases is that we must respect people’s right to believe, however their beliefs cannot be used as an excuse for actions that discriminate against someone else or otherwise have a negative effect on our organisation, staff, service users etc.
When measuring the balance of harm, be careful to look at the situation from all angles. For example, some organisations have refused transwomen access to the appropriate toilet facilities on the grounds that other staff and service users are uncomfortable with their use of the toilets. Taking an equalities and human rights based approach, we can see clearly that the discomfort is caused by discrimination and prejudice, which is made even worse by refusing access. The correct action to take would be to tackle the prejudice and support staff and service users to accept the situation.