Instead of a night of celebration, this year’s BAFTA awards sparked controversy.
John Davidson, a Tourette's activist who was there to celebrate his film I Swear, shouted a racial slur while two Black actors, Michael B Jordan and Delroy Lindo, were presenting an award. The host explained Tourette’s and apologised "if" anyone was offended, but did not specifically address the hosts. The show was broadcast 2 hours after filming, but the BBC chose not to bleep out the word.
It has led to a debate around ableism, racism, culpability and unintended harm. It has also highlighted the difficulty of sensitively balancing the needs of different groups. While the BAFTA’s is no ordinary workplace, this issue could just as easily arise in normal workplaces.
Coprolalia, which affects 10-20% of those with Tourette’s, makes sufferers say the very thing they know is wrong or offensive. Depending on the situation, that could cause them to say a slur relating to anything sensitive. If that relates to a protected characteristic- race, religion, sex, disability, age, pregnancy/maternity or gender reassignment - then it could be discriminatory. While we can logically understand that the person has no control over their tic, this does not negate the emotional, even traumatic impact of hearing certain slurs.
Disability Discrimination
Tourette’s syndrome is a lifelong condition, and there is no doubt that it can make everyday life difficult. Many cases would therefore class legally as a disability. (John prefers not to use this term generally, but here we use it in the legal sense.)
Unfavourable treatment because of something arising from his Tourette’s would be discriminatory, unless it was a proportionate way of achieving a legitimate aim. Employers have a duty to make reasonable adjustments to help reduce the difficulty faced by disabled staff. These will differ by person, as they should be specific to the hardship faced. Reasonable adjustments for Coprolalia will be different to someone with a physical tic.
In this case, treating involuntary tics in the same way as someone who willingly used those slurs would be discriminatory. Instead, handling the issue neutrally, addressing the harm without blame, could be a reasonable adjustment.
When making reasonable adjustments, employers can consider effect on others. For example, if simply ignoring slurs would be harmful to other staff, they should consider alternatives that reduce that harm. What is reasonable may also depend upon whether the individual is happy to disclose their condition to others. Some adjustments (such as warning colleagues about the condition) will not be possible if the person does not want to disclose their condition.
If reasonable adjustments cannot overcome the difficulties, an employers may have no choice but to consider a person’s disability when making decisions (such as whether to hire the person). This should be a last resort.
Race Discrimination
Unwanted conduct relating to a protected characteristic, which has the purpose or effect of creating an intimidating, hostile, degrading or offensive environment, is harassment. It is important to consider whether a 'typical' person would see the behaviour as harassment. The tribunal may consider that the involuntary nature of tics makes them not discriminatory. But the reaction to the BAFTA’s event shows that many people do consider this to be unwanted, hostile and offensive, so employers should at least be aware of the risk.
Subjecting a worker to detriment because they have enforced their rights, or you believe they will do, is victimisation. This could include appearing to punish the person for making a complaint or stereotyping the person as ‘aggressive’ for being upset.
Employers can also be vicariously liable for discrimination between employees, from employees towards third parties, and soon from third parties towards employees. Employers do have a defence if they have taken all reasonable steps to prevent harassment. Employers should seek legal advice about suitable steps to take, especially in such difficult circumstances.
Balancing characteristics
There is no hierarchy of protected characteristics. One does not take precedence over the other.
A recent case about the protected characteristics of sex and gender reassignment considered this balance relating to single-sex facilities. The tribunal described is as “a fallacy” that to respect the transgender employee’s rights, they must be given access to the female changing room. It drew a distinction between protection from discrimination, harassment and victimisation, and positive rights. It was possible to respect trans persons rights and dignity without automatically giving them the right to use changing rooms of choice. Even where striving for a legitimate aim, employers should look for other solutions (in this case, a third space) that respect the rights of other staff.
The BAFTAs were criticised for apologising “if” anybody was offended and for focusing on explaining Tourette’s without acknowledging Michael or Delroy. A statement released following the event apologised “unreservedly” and thanked them for “their incredible dignity and professionalism,” which felt more appropriate. Delroy Lindo has said he wished someone from BAFTA had spoken to him afterwards, showing the importance of acknowledgement.
But some Tourette’s campaigners have said it isn’t reasonable to expect John to apologise for his disability. In a similar situation, it may be appropriate to distinguish between apologising for a disability and for the impact it has. While an apology is not appropriate for every involuntary and innocuous tic, it may be reasonable where the terms are particularly weighted.
If a Black employee complained about hearing slurs in the workplace, the employer should at least consider their concerns and take steps to show understanding. It could be risky to entirely dismiss the Black employee’s concerns because the person who offended them has Tourette’s.
On a practical note, employers will also need to consider the ongoing working relationship.
Employers’ response will differ depending on the specific circumstances, but could include:
Preparing colleagues in advance. Ensure everyone understands the condition, that the tics are involuntary and that they do not reflect the individuals’ beliefs or represent the organisation’s values. Be clear that you would not accept such language under any other circumstances.
Acknowledging that harm was caused, while emphasising that it was unintentional. If an apology is not appropriate, BAFTA’s approach of thanking the people affected for their understanding may be a reasonable middle ground.
Holding ‘mediation’ to maintain the relationship, offering a chance to relate as individuals. This could be an opportunity for both sides to explain their experiences to the other and express understanding without blame.
Making adjustments to help the individual manage their tics if possible, reducing the impact on them and those around them. Tics are often made worse by stress, so offer extra support to reduce stress. In some cases, individuals can feel tics building up like a physical sensation, so employers could provide a readily accessible space to go and privately release tics.
If the relationship is damaged beyond repair, or the tic is likely to happen repeatedly and an employee feels this would be difficult for them to hear, employers could consider putting the employees on separate shift patterns or in separate workspaces, without assigning blame.
Balancing different interests isn’t easy. You do not have to relate to or agree with either side, but you should take their concerns seriously. There may not be a clear answer, and any potential legal claim will depend on very specific circumstances. But employers should try to be reasonable in their response and respect the rights of all involved, to reduce the risk of legal claims.
While the law sets a minimum bar, it is important to recognise the feelings of all involved. Having HR support may be very helpful to foster a respectful culture and maintain relationships.
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