Given the small majority by which the ‘leave vote’ won, opinions about the outcome of the referendum are inevitably divided, and potentially divisive. Against the background of continuing uncertainty about what happens now and what the longer term consequences of the decision might be emotions are running high. This is the case both among successful ‘leave’ voters and disappointed supporters of ‘remain’.
Media coverage of a rise in physical, verbal and social media attacks on ethnic minorities, reflected in a 57 per cent increase in reported ‘hate crimes’ during the week following the referendum, (according to statistics from the National Police Chief’s Council), is obviously worrying. Although the majority of these reported incidents occurred at public gatherings, community centres/activities or on public transport, employers cannot afford to be complacent about the possibility of post Brexit tension spilling over into the workplace.
Clearly any disruption to workforce harmony is bad for business and likely to affect productivity. However, employers also have a legal obligation to protect their employees from such potentially hostile behaviour.
Now is the time to ensure that your HR policies and procedures are fit for purpose, communicated properly and are operated effectively.
Risk of discrimination/harassment claims
Despite the leave vote, current employment protections remain unaltered. Under the Equality Act, all workers are protected from discrimination on the basis of a ‘protected characteristic’. Protected characteristics include age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, pregnancy and maternity.
Harassment occurs when somebody engages in unwanted conduct which relates to a protected characteristic and which has the purpose or effect of violating another’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. Whether conduct has such an effect will be judged subjectively from a complainant’s viewpoint. A complainant need not be the direct recipient of action or comment, individuals can suffer harassment by association. Employers can be held legally liable for acts of harassment undertaken by individual employees.
Harassment of EU workers
Immigration and the free movement of labour was at the heart of much of the public debate around Brexit. Employers, especially those with a diverse workforce including EU migrant workers, should be alert to the risk of harassment claims on the grounds of race, which includes nationality. Such claims could potentially arise not just from incidents of a clearly xenophobic nature, but also from unchecked excessive ‘Brexit banter’, or even inappropriate comments or enquiries, regardless of their intention or motivation. For example, EU colleagues being asked when, in light of the outcome of the referendum, they were “thinking of returning home”. Or similar enquiries being made of UK nationals with EU spouses or partners.
Harassment on the grounds of age
It is not just tensions along lines of nationality which have bubbled to the surface as a consequence of the Brexit vote. We have also seen clear generational divisions on the issue of EU membership. In a post referendum survey conducted by YouGov, 75 per cent of those who had voted who were aged between18-24 claimed to have voted to remain. There has been a very vocal social media backlash from younger people accusing older generations of ‘selfishly voting away their future opportunities’. This resentment could very well spill over into the workplace.
Harassment on the basis of philosophical belief
Although not the most obvious legal harassment risk arising from the Brexit vote, in light of the issues which come to the fore when discussing EU membership - issues of sovereignty, democracy, free movement of labour etc. - there may be scope for claims by individuals on the receiving end of particularly forceful pronouncements on such issues that they have been subject to harassment on the grounds of ‘philosophical belief’. In order to qualify for such protection under the Equality Act, a philosophical belief must have ‘the seriousness, cogency and cohesion and importance of a religious belief. It must be worthy of respect in a democratic society and not incompatible with human dignity’. Case law on philosophical belief shows that it can be interpreted broadly. In one case, a belief in man-made climate change was deemed to warrant protection. Such claims arising from a workplace Brexit dispute cannot be ruled out.
Risk of constructive dismissal claims
If employers fail to protect their employees from harassment, or incidents of alleged bullying are not properly addressed, then employers may well also find themselves facing formal grievances. Or they may even end up defending employment tribunal claims for constructive unfair dismissal, if employees walk out as a result. This is the case whether or not the ‘victim’ is able to establish a claim under the Equality Act.
Practical steps to reduce risk and maintain workplace harmony
Some level of anxiety post the Brexit vote is inevitable. Understandably some employees fear another recession and worry for their job security. Many EU nationals have concerns about their immigration status and their future right to remain in the UK. Such tensions and anxieties can risk inflaming previous latent divisions in the workplace. Obviously, there is no one size fits all when seeking to harmony during what will inevitably be a lengthy period of uncertainty and adjustment. What is the right course of action for your business will depend on your businesses circumstances and your workforce make-up.
However, there are a few basic practical steps employers can take to seek to minimise the risks of a ‘Brexit fall-out’ in their workplace.
- Communicate your expectations clearly
Whilst it is unrealistic to ban employees from discussing Brexit whilst at work, employees should be reminded that everybody in the workplace is entitled to be treated with respect and dignity and employees should not allow political opinions or differences to affect their performance or working relationships.
- Enforce your policies and procedures
Confirm to employees and managers that all aspects of your organisation’s equal opportunity, diversity, bullying and harassment and social media policies etc. will be enforced. Confirm that acts of discrimination or harassment/bullying, including on the grounds of race, nationality or ethnic origin, will not be tolerated and will result in disciplinary action, which could include dismissal for gross misconduct.
Ensure that employees are aware of what action they should take if they are concerned about or upset by the behaviour of others in the workplace, and who to go to for advice and assistance.
You may wish to issue an organisation wide communication in respect of the above, or get managers to reinforce this message at team meetings etc.
Some employers actively encouraged their employees to vote a particular way in the referendum, typically, but not always, ‘remain’. However, now the referendum is over, it is vital that employees who let it be known that they voted differently are not subjected to any detriment or less favourable treatment. Not only to avoid any potential legal claims, but also to set a clear example of tolerance and expected standards of behaviour.
- Keep your employees informed and be as transparent as possible
Communication in times of uncertainty is vital for workplace morale. Silence has a tendency to breed suspicion. Communicate as much positive and reassuring information to your employees as you can, without of course raising unrealistic expectations, or making promises that you may not be able to subsequently keep. Also, be open to questions from your workforce. You may not be able to supply definitive answers to all the questions raised given the extent of current political and legal uncertainties, but you will be demonstrating that you are seeking your workforce’s support and co-operation in meeting the practical challenges of Brexit which lie ahead.
How EEF can help
EEF will continue to keep you abreast of Brexit developments and their potential implication for your business and workforce as and when they occur.
Members can also access EEF’s model HR policies and procedures, including our bullying and harassment policy (which prohibits harassment and bullying on any ground) from the EEF website.
Following the referendum result, EEF’s Director of Employment and Skills Policy, Tim Thomas, joined a webcast hosted by immigration specialists, Fragomen solicitors, to discuss some of the broader potential legal implications of the UK’s decision to leave the EU and the legal mechanism by which this may happen.
EEF members can access a recording of this webcast for free by clicking here.
EEF can provide you and your team with the training and development you need to tackle discipline and grievance, discrimination and equality in the workplace through courses at our sites across the UK or at your facility.
EEF National seminar - What does Brexit mean for HR?
Currently, the form of the UK’s future relationship with the EU and the basis on which we can continue to trade with the Single Market is unclear. The journey to clarity will take time and inevitably involve many twist and turns. Join us at our national seminars in October to find out how best you can seek to ‘Brexit-proof’ your HR functions during this time of uncertainty, and what might a post Brexit HR landscape might look like.
For more information or to book click here.