In the aftermath of the Brexit referendum, uncertainty and turmoil have dominated the headlines. With so much still unknown, there are many questions over which areas of employment law and regulation may change depending on the political wrangling and trade-offs over the next months and years. We have reported previously on the likely areas of employment law change triggered by Brexit, but many of these look likely to be several months or years down the line.
Amidst the uncertainty, here are some immediate practical tips for employers to manage their workforce in the post-referendum world.
Commitment to Brexit / remain: a protected characteristic?
The passionate debate about leave versus remain has spilled over into many workplaces, both at work and on social media. Could holding a firm belief in the merits of leaving, or remaining in, the EU be a protected characteristic for the purposes of discrimination law under the Equality Act 2010?
In the right circumstances, yes. We reported last year on the trend for the courts to treat firmly held political views as a species of belief attracting protection from discrimination under the Equality Act. The courts are taking an increasingly liberal view as to the types of belief which attract such protection: for example, a recent ruling upheld a “commitment to left wing democratic socialism” as qualifying for discrimination protection. A firm commitment on either side of the Brexit debate could easily be the next step for the courts, although these cases are always fact-sensitive, and not every “Brexiteer” / “Remainer” will qualify. Caselaw suggests that such a belief must also be "worthy of respect in a democratic society” to qualify for protection; given the millions who voted on either side of the referendum question, it is hard to imagine that either the leave or remain view would fail to pass this test.;
In the febrile post-referendum atmosphere, there could be real risks for employers if debate gets out of hand and becomes disrespectful or even abusive, with the potential for claims under the Equality Act.
Practical steps for employers:
- Monitor political debate at work and be prepared to intervene if the tone is potentially offensive. Employees can inadvertently offend others – particularly colleagues who may be shyer to share their own views - which could lead to harassment claims or even constructive dismissal in extreme circumstances. Employers are also entitled to require their staff to keep non-work related discussion to appropriate levels.
- Check you have a well-drafted social media policy in place and that your equal opportunities policy adequately addresses political views, and take disciplinary action to enforce these policies where appropriate. Social media has been the outlet for strongly-worded views on the Brexit question, with the potential for friction, reputational damage and even vicarious liability for the employer if it causes offence to colleagues or customers.
Workforce planning: keep calm and don’t discriminate
EU nationals retain their rights to live and work in the UK for the time being, as if the referendum had never happened. Any recruitment, promotion or redundancy practice that favours UK nationals over other EU nationals could constitute unlawful discrimination, on grounds of nationality.
This issue was thrown into focus last month by the Supreme Court in the case of Taiwo v Olaigbe, which ruled that discrimination on grounds of immigration status was not a species of race / nationality discrimination on the particular facts of that case. In Taiwo, employers subjected two Nigerian domestic workers to mistreatment because their immigration status made them particularly vulnerable (for example, to threats of being reported to authorities if they complained about their treatment).
However, EU nationals working in the UK are (for now at least) in a very different position, as they have essentially the same right to work and live in the UK as UK nationals. Differential treatment as a result of the referendum vote would therefore be based on nationality, not immigration status, at least until any change in the immigration rules.
- Employers must avoid “jumping the gun” on changes to immigration rules that are at this stage purely speculative. Avoid treating EU nationals less favourably than UK nationals on the assumption they may lose the right or the wish to work in the UK – this could be unfounded and is likely to be discriminatory.
- Other steps to consider are mentioned in our article on EU migrants [INSERT LINK].
Update your restructuring and redundancy policies
Inevitably, some businesses will be negatively affected by the outcome of the referendum, although there may well be opportunities for others. In either case, now is the moment to prepare for change by:
- Ensuring that you have current, signed contracts for all employees and chasing up on any stragglers;
- Checking that employment contracts give you flexibility and have robust provisions dealing with relocation, changes to job roles and amending contract terms as well as clear and workable termination provisions;
- Collating relevant employee data into a spreadsheet and keeping it updated; and
- Reviewing redundancy and restructuring policies, in case these are needed in allowing your business to weather any difficult periods ahead.
Keep preparing for the General Data Protection Regulation
In the coming months and even years, the UK will need to decide what to do in respect of EU directives and regulations that will come in to force during the remaining period of the UK's EU membership. One of the most important changes on the horizon relates to data protection. Irrespective of domestic legal change and renegotiation at the political level, UK companies planning to trade within the EU post Brexit are likely to need to comply with the new EU General Data Protection Regulation (“GDPR”) because businesses that use data about living EU citizens will be caught by the GDPR. The Information Commissioner has also confirmed his view that if the UK wants to trade with the single market on equal terms it would have to prove “adequacy” – in other words UK data protection standards would have to be equivalent to the EU's GDPR.
- UK companies who trade in the EU, or plan to do so, should continue preparing for the GDPR.
In summary, every business will be impacted differently by the outcome of the Brexit referendum, but all face in common the resultant uncertainties. While most employers will not yet know exactly what impact Brexit will have on their business, these actions points will be helpful in all cases and will position employers to react quickly as events unfold.