Last week's vote to leave the European Union has sent significant shockwaves across our society. In this article, we consider the immediate risks, and the steps employers should take to prevent tensions spilling over into in the workplace.
The momentous decision to leave the European Union has set the wheels in motion for years of exit negotiations. Although formal exit may be years away, immediate shockwaves have been felt across our society:
- Remainers are petitioning for a second referendum and making their views known on social media with the hashtag "Notmyvote".
- Protests against Brexit were expected in Trafalgar Square and other cities on 28 June 2016.
- There have been calls for Scotland, Wales and even London to become independent EU states.
- Brexit has also been described as a clash of generations with 75% of people aged between 18-24 claiming that they voted for Remain in the YouGov survey.
- More worringly, there have been reports of racial tensions with community centres being vandalised and ethnic minorities receiving verbal and written abuse. Twitter and Facebook pages have been set up for victims to report incidences of post-referendum racism (see @PostRefRacism).
Employers must be careful to monitor these shockwaves within the workplace and take steps to prevent confusion and tension spilling over into discrimination and harassment.
Harassment of EU migrant workers
The first, perhaps most obvious, area for concern is liability for discriminatory remarks by employees. Since the referendum, EU nationals have reported a rise in xenophobic attitudes, for example, being asked by colleagues when they are planning to "go home" or how long they have been in the UK.
Harassment occurs when remarks have the purpose or effect of violating an individual's dignity or creating a hostile working environment. So, an employer would be liable for remarks which have the effect of undermining an individual's dignity at work, whether the comment was intentional or not. Asking a worker when they intend to"go home", or similar remarks, however intended, could potentially amount to discriminatory harassment.
It is also important to remember that a complainant need not be the recipient of such remarks either. A person may suffer harassment by association (for example, if an employee is asked about the status of relatives who are EU migrants) or by perception (if they are perceived to be an EU migrant when they are, in fact, British).
There have also been past cases where employers have instructed employees not to speak in a language that colleagues do not understand at work. In some cases, the employer has been able to demonstrate a reason that was unrelated to nationality or national origins. In other cases, where the instruction has extended to communications during break times, the employer's actions have been found to constitute harassment. In the tension associated with Brexit, it may be more difficult for employers who give such instructions to defend their position and avoid complaints of discrimination on the grounds of nationality.
Harassment on the grounds of age
While press reports have focused on tensions along nationality lines, divisions along age lines should not be overlooked. The analysis of the voting reveals a gap in the voting patterns of young and old. Social media is awash with angry comments from younger voters who favoured Remain and responses from Leavers. On Monday, the Guardian reported on family rifts over Brexit with one Remainer stating that she was worried Brexit has made her ageist and that upon seeing an older couple on the street she felt "a sudden, enormous wave of fury towards them and their generation".
We have seen workplace discrimination complaints based on remarks like: "You can't teach an old dog new tricks." It is easy to imagine how arguments about the Brexit vote might break out in the workplace and descend into age-related insults on both sides with the young dismissed as "naïve" and the old described as "out of touch".
Harassment on the grounds of philosophical belief
Could a pro-Leave employee complain of harassment on the grounds of philosophical belief where the Brexit outcome is denounced by angry Remainers? Would a Remainer wearing a "Not in my name" badge or an "I'm with the 48%" T-shirt cause offence and create a potential liability for an employer?
Discrimination because of religion or philosophical belief is protected under the Equality Act 2010. In order to qualify for protection, a philosophical belief must have the seriousness, cogency, cohesion and importance of a religious belief. It must be worthy of respect in a democratic society and not incompatible with human dignity.
The case law on philosophical belief shows that it can have wide application. In Grainger Plc v. Nicholson, belief in man-made climate change qualified for protection. There is also a first instance Tribunal decision where a political belief in democratic socialism by a Labour Party member was protected. However, there have been other cases where political beliefs have not attracted protection because they lacked coherence or were incompatible with human dignity.
Nonetheless, the risk is there and it would be advisable for employers to monitor the tone of discussions and behaviours connected with the Brexit vote.
Discrimination in recruitment
Finally, employers need to be careful not to inadvertently discriminate against, or harass, EU migrant job applicants during the recruitment process.
Employers must not discriminate against job applicants by not offering them a job on the grounds of race (which covers nationality). A decision not to offer a post to a job applicant on the basis that they are an EU national, and their future right to work status is uncertain, could amount to race discrimination. Similarly, employers should avoid asking interview questions such as: "Have you any plans to go home?". This could potentially amount to harassment.
Employers should remember that unless, and until, there is a formal withdrawal from the EU, EU nationals retain the right to live and work in the UK.
Whilst each situation will turn on its own facts, now more than ever, employers must emphasise the importance of having a working environment in which different views can co-exist and where everybody's dignity is respected.
As with all discrimination complaints, employers should be wary about relying on their equal opportunities policies alone. If such policies have been gathering dust, it would be prudent to reiterate the commitment to equal opportunities through internal communications and senior executive sponsorship.
In order to defend an harassment complaint, employers must demonstrate that they have taken all reasonable steps to avoid discrimination occurring. Turning a blind eye to high-octane discussions in the workplace, even in these heady times, is not advisable.