A belief in Brexit? Guidance for employers and senior managers in the UK
In this Brexit update, we look at whether support to remain in or leave the European Union could amount to a belief for the purpose of discrimination laws, how this could impact on workplace relations and the risks for both employers and employees.
Since the UK public voted in favour of the UK leaving the European Union in a referendum on 28 June 2016, there is no question that public discourse has become increasingly politicised and polarised.
Immediately in the wake of the EU referendum last summer there were reports that lawyers were advising companies who were facing claims from pro-Brexit staff over clashes in the workplace and on social media, and this issue has not gone away.
Political discussions and tensions can spill easily into the workplace, particularly when the news is filled with stories relating to Brexit most days. A failure to properly manage the impact of Brexit related discussions in the workplace could leave an employer exposed to complaints and claims by employees. Just this week there have been further reports in the press of a rise in racial abuse and hate crimes following the referendum, so tensions are still running high. The recent parliamentary votes, and Article 50 Supreme Court challenge, have also sparked further debate and discussion.
Discrimination on the grounds of religion or belief
Under UK employment law, employees and workers (including some categories of self-employed workers) are protected from discrimination, harassment and victimisation on the grounds of religion or religious or philosophical belief (which includes a lack of religion or religious or philosophical beliefs).
In order for a belief to qualify for protection it should be a genuinely held belief (not an opinion or viewpoint based on information or lack of information available), relating to a weighty and substantial aspect of human life and behaviour, and it should attain a certain level of cogency and cohesion. It must also be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.
Whether or not a belief qualifies as a protected belief will very much depend on the facts and circumstances of each case.
Philosophical belief has been interpreted widely in the past, and employment tribunals have taken the view that beliefs, including, by way of example, on climate change, anti-fox hunting and a belief that ‘lying is always wrong,’ could amount to philosophical beliefs.
The position around political beliefs and affiliations is not clear cut. Support of a political party does not itself amount to a philosophical belief but in a leading case, the Employment Appeal Tribunal took the view that that a political belief can be protected in principle provided it is a belief ‘worthy of respect in a democratic society’. That of course, may be a matter which could divide opinion in itself, but a Tribunal would seek to form an objective view.
Tribunals have held that a belief in democratic socialism by a Labour Party member was a protected belief, but, in another case a Tribunal rejected a claim that membership of the British National Party (an extreme right-wing party who advocate British nationalism) was a protected philosophical belief. This particular case reached the European Court of Human Rights which disagreed with the Tribunal and stated that UK law should afford specific protection to employees dismissed on the grounds of their political belief, irrespective of whether the belief was shocking or offensive.
Therefore, it would seem possible that a belief that the UK should either leave or remain in the EU could amount to a protected belief, either in itself or on the basis of some underlying belief which lends itself to either viewpoint, for example British nationalism, Euro-scepticism, the belief in state sovereignty, or a belief in internationalism or multiculturalism.
The UK’s vote on Brexit also reignited talks of another referendum on Scottish independence. The Scottish independence referendum in 2014 engaged a large numbers of people in Scotland in the democratic process, and with that, came extensive debate, often very heated. That debate has not gone away and another referendum will bring emotionally charged political views to the fore once again. A belief that Scotland should become independent or remain part of the UK may also amount to a protected belief.
The public expression and discussion of political views of workers and interactions between fellow workers can give rise to a number of risks for an employer when assessing whether and how to respond to this expression of views and related behaviour and conduct.
Implications for employers, employees and managers
If a worker is treated less favourably because of their belief or perceived belief in respect of Brexit (for example if a manager does not consider a worker for promotion because they are a Remain supporter) or if heated Brexit discussions between colleagues create an intimidating, hostile, degrading, humiliating or offensive environment for an employee, this could give rise to claims of unlawful discrimination or harassment. There is also a risk of victimisation if a worker is subjected to a detriment because they have made an allegation of discrimination (for example if they are dismissed after they raise allegations of discrimination based on their opinion on Brexit).
An individual worker or manager may have strong views which they want to express and discuss in the workplace. However, senior executives in particular should exercise caution in this regard as more junior colleagues may feel unable to put forward their own views (particularly if these differ) and may even feel that, if they express their own view, they may risk damaging their relationship with the senior manager, or their career. Senior employees should be careful not to let those whom they manage feel threatened or intimidated in any way, as a result of any expression of political belief, because, as set out above, creating a threatening or intimidating environment can amount to unlawful harassment. Discriminating against a colleague, or harassing someone may also give rise to disciplinary action for misconduct or gross misconduct against the senior manager.
Another issue for senior executives is that discrimination and harassment claims can be bought against individuals, as well as employers. Employers are often vicariously liable for discriminatory actions of individual employees committed during the course of their employment but, in circumstances where the employer can show that they took all reasonable steps to prevent such action, a finding can be made against an individual employee, and they can be ordered to pay compensation.
Employers should review anti-discrimination, anti-harassment and disciplinary and grievance policies and may wish to consider introducing specific policies or guidance aimed at discouraging controversial discussions about Brexit in the workplace. It is unrealistic to expect workers not to discuss something which has such huge implications for the UK but it is important that any such discussions are conducted in a way in which no one feels intimidated or threatened, and that workers are not treated less favourably as a result of their political beliefs. Employers need to be alive to the risks posed by discussions about politics in the workplace, and be prepared to deal with any discussions or situations which may be discriminatory or offensive, including with disciplinary action, if appropriate.
The existence of a policy may not always be enough to show reasonable steps have been taken to prevent discrimination. Employers should be proactive and remind staff of their commitment to anti-discrimination, equality and diversity and may also wish to provide training on equality and diversity for all staff. It should also be made clear to staff that any breaches will be considered a disciplinary matter and any complaints of belief-based discrimination will be taken seriously and dealt with in accordance with grievance and disciplinary procedures. In addition, if employers are aware of situations which may create a risk, these should be dealt with properly, fairly and promptly. If a company is able to evidence that steps were taken to prevent unlawful discrimination and harassment this can then assist the employer if they are faced with defending a claim.
Employers and workers should also be aware of the risks inherent in using social media. If particular views are only expressed on social media, this does not mean that they will not be relevant when assessing bullying, harassment or discrimination claims. Equality policies should be updated to include references to social media, where appropriate.
If your business needs to make organisational changes or redundancies as part of its post-Brexit strategy, there should be fair and documented decision-making processes referring to objective business reasons as well as careful management of how this is communicated to staff, in order to minimise the risk of complaints that such decisions might have been made based on a worker's political beliefs.
Discrimination on the grounds of political belief is not the only workplace risk posed by Brexit. As mentioned above, there have been reports that racial abuse and hate crimes have increased since the referendum and employers must ensure they have in place similar policies and procedures to prevent and address any discrimination, harassment or victimisation on the grounds of race or nationality.
As the full impact of the UK’s vote to leave the EU gradually unfolds, further tensions between those who voted to leave, and those who voted to remain are likely. With another referendum in Scotland also a possibility, it is inevitable that politics, and people’s individual political beliefs will be discussed in the workplace. Provided employers are aware that political beliefs may form the basis of a discrimination claim, they should be able to manage the risks that discussions of these beliefs can pose in the workplace. Employers and workers should be alert to the legal implications, and be careful to express any views in a way which does not amount to discrimination, harassment or victimisation. Employers can minimise the risks by ensuring they have clear equality policies in place, which explain what can amount to discrimination, harassment and victimisation, and set out the processes for workers to follow in the event that they consider they have a complaint, and apply these procedures consistently.
CM Murray LLP is a founder member of Innangard, an international employment law alliance which brings together leading employment law specialists from around the world to collaborate on international and cross-border employment law and HR issues.
Sarah Chilton is a partner and Zeinab Harb is a trainee solicitor at CM Murray LLP, specialist employment and partnership lawyers regularly advising international employers with UK operations, and UK employees on a variety of employment law issues.
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