Post-Brexit office debate: Avoiding discrimination and victimisation

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Emotions are running high but what obligations do employers have to control discussions between staff?

The result of the EU referendum is a hot topic of conversation, and although the long-term effects of the UK’s decision to leave the EU are still unknown organisations are having to deal with the more immediate impact of this result on their employees. Given the importance of Brexit emotions continue to be running high, but what obligations do employers have to control what is discussed between colleagues on this topic?

Concern over immigration was one of the key issues raised by Leave supporters, which in turn led some in the Remain camp to label those who voted in favour of leaving the EU as racist. Under the Equality Act 2010 employees have the right not to be discriminated against, or be subjected to harassment because of their philosophical beliefs.

Courts have typically considered the question of what amounts to a philosophical belief quite flexibly and it's likely that an opinion on either side of the Brexit debate would qualify as a philosophical belief. Employers may have taken a corporate line on which side to support in the referendum, so it's particularly important that employees are not disadvantaged because they are known to have differing views to the business or senior management on Brexit.

Employers also have an obligation to ensure that staff are not harassed because of their views on Brexit and can be held responsible for their employees’ actions in this regard. Accusing a worker of being racist because they voted to leave the EU, or subjecting an individual to bullying because they wanted to remain, could create the type of intimidating and hostile environment that constitutes unlawful harassment.

Harassment may arise because of a person's nationality as well. Since the UK voted to leave the EU there have been reports of a significant increase in attacks against EU residents living in the UK, and employers should take steps to protect their employees from harassment on the grounds of their nationality.

Organisations will avoid liability for actions carried out by their employees if they can demonstrate that they have taken all reasonable steps to prevent harassment. Asking staff not to discuss their views on the result while at work is likely to be difficult to police and may not be practical given the historic nature of what has taken place. Instead, firms are better advised to remind everyone of the provisions of the business’ equality policy and emphasise that differing views on Brexit should be respected.

Workers should also be notified that victimisation and harassment on the grounds of these views, or due to an employee’s nationality, will not be tolerated and could result in disciplinary action. Employers have a duty to maintain mutual trust and confidence in their relationship with their employees, and protecting staff from discrimination and harassment is an important part of this duty. In the event that someone is subjected to harassment such treatment is likely to justify that employee’s resignation and therefore the business could face a claim of constructive dismissal as well.

The result of the EU referendum has generated much uncertainty and it’s natural for people to want to discuss the implications of the result with colleagues. For employers it’s important to ensure that these discussions are held responsibly and not in a way that could victimise employees for their views.

Nicholas Le Riche is employment partner at Bircham Dyson Bell and part of the firm’s Brexit team

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