Not for the first time two different sets of human rights have collided, this time freedom of expression and transgender discrimination. High court judge Mr Justice Julian Knowles has ruled in that former police officer Harry Miller had NOT breached the law with his limerick on transgender women which he tweeted, in fact, the police had breached his right to freedom of expression and had “behaved like the STASI” when officers attended Mr Miller’s place of work to inform him that his tweets, comprised a hate incident. Mr Miller, as a former police officer, who no doubt has a slight edge as to what is and is not a crime compared to the average person, questioned where the crime was. Puzzlingly the police officer who visited Mr Miller’s offices agreed that there had been no crime, according to Mr Miller, but insisted that the tweets would, never-the-less, be logged as a hate incident. Mr Miller was told if he didn’t like it he could sue, and he did.

Mr Miller founded a campaign group called Fair Cop, which highlights what he and others consider to be disproportionate police reaction to complaints made by LGBTQ individuals mainly about comments made in the public domain that challenge the perception that a transgender person has about their gender. The ice under this particular platform may be somewhat thin.

The decision comes on the heels of the Glasgow nightclub incident where a lady was asked to leave due to a complaint from offended transgender patrons about her t-shirt which had the logo of the LGB Alliance, a group that campaigns for LGB individuals against what the group perceives as an erosion of their rights by what they see as gender confusion activated transgender individuals. The transgender community believes that the group breach the Equality Act 2010 as does The LBG Alliance member who also believes that her rights under the Equality Act 2010 have been breached. All the rights protected under the Equality Act 2010 are deemed crucial to a civilised society.

Where does this leave HR departments if there is a workplace clash between two protected characteristics? Does one “right” trump separate different “right”? The line between freedom of speech and certain types of discrimination is thin to the point of vanishing. Nick McEwen, a lawyer in the corporate team in London office of Legal Law Limited, suggests that in order to avoid the almost impossible to resolve situation of a clash of discrimination rights, that HR policies are drafted in such a way that no employee should be in any doubt as to the consequences to an employee should they make comments that breach any of the protected characteristics of the Equality Act 2010, no matter what their position in the company and regardless of how the incident arose; making clear that a discriminatory response to a perceived offensive comment will be dealt with as robustly as any remarks that lead to it and cannot be brought into play as a mitigating circumstance. All employees must fully understand that any expression of discrimination, as outlined in the Equality Act 2010, regardless of any firmly held principles, cannot be permitted in the workplace and that the law must and will be observed.

A firm warning is far better for an HR department than a tribunal case that has every chance of attracting highly adverse publicity, even if the approach may seem heavy-handed.