Leading up to and following the referendum in 2016, there were incidences of harassment and bullying between 'Leavers' and 'Remainers', as well as increased reports of incidences of racism. As we get close to crunch time we are likely to see a return and possible increase of this type of behaviour.
Potential job losses and actual, rather than imagined, changes to personal wealth and circumstances as a result of the UK leaving the EU are likely to result in stronger feelings and more heated exchanges. Employers need to take steps to ensure they limit the impact; or face the risk that claims will be brought as a result.
The protected characteristic of race in the Equality Act 2010 covers more than skin colour. Nationality and ethnic or national origins are also included. While derogative comments based on nationality against an employee of black African origin are pretty clearly racial, similar comments to a person of white European origin are often overlooked as being 'banter' or teasing. But the law says otherwise.
Following the referendum, an Italian employee had a box placed on their desk with the message: 'Brexit – go home'. This was clearly a serious act of discrimination based on nationality or national origin, and hence race.
Harassment and direct or indirect detrimental treatment of an employee based on their nationality or national origin may lead to claims against employers. As we near the 12 April/22 May deadline, urgency is leading to a hardening of the rhetoric in TV debates. Public frustration is taking to the streets in organised marches and protests and there is a real risk that passions will spill over into the workplace. Employers need to be aware of this and start putting measures in place to counteract any such behaviour and best position themselves for resisting any such claims.
In the current #MeToo era employers are very alive to claims of harassment and discrimination on the grounds of sex. But this has not necessarily been the case in relation to race or nationality in the Brexit context. However, similarities exist in the way that both can be handled.
Whether preparing to deal with harassment and discrimination based on the protected characteristic of race, or bullying and unacceptable behaviour between employees, it would be prudent for employers to remind staff of the standards of behaviour expected.
Employers need to ensure they have appropriately-drafted policies in place that explain some of the legal background and what is expected of those working for the employer. Employees need to be made aware of these policies and trained on them. They also need to know the consequences of falling short of the standards set. Employees need to realise that claims brought on the basis of disparity of treatment can be brought against them personally, as well as against the employer.
In the context of #MeToo we have seen a significant rise in the number of clients introducing helplines. There is no reason this should not also extend to race in connection with any Brexit-related incidents.
Brexit, like #MeToo, is not a standalone scenario requiring a bespoke solution. The communication, training and speaking-out mechanisms put in place to address these specific issues should form part of an overall objective to encourage and develop a workplace culture that prevents such behaviour arising in the first place.
If claims are brought then the employer may have a defence if it can point to the policies, training and hotlines it has in place; it will be able to show it did what it could to avoid the treatment complained of occurring. In addition it may give the employer the ability to stand back from the employee alleged to have acted in such a way.
Jonathan Maude is the chair of the UK/EU Employment Law Committee at Vedder Price