Irwin Mitchell | Focus on Employment | Dealing with the backlash following Brexit.

The result of the referendum has revealed that we are a divided nation: divided by region, divided by age and divided by education and wealth.

As the UK struggles to pick up the pieces and forge a way forward, voters have turned on one another. Calls for both sides to work together have largely fallen on deaf ears and social media is awash with vitriolic comments, name-calling and abuse.

What should employers do if such polarised views spill out into the workplace?

Employees are entitled to a private life and to hold opinions that their employers and others with whom they work do not agree with, but this does not mean that they have an absolute right to say what they like. Most employers have workplace policies and rules, which spell out the behavioural standards staff must meet. These will usually require staff to treat each other with dignity and respect. Calling a colleague a “moron” (or worse) for voting a different way, ridiculing them for their “mistaken” beliefs or clearing the desk of an EU worker “as a joke” will cause problems and may amount to bullying and potentially discrimination.

Under UK law, an individual can complain of bullying or harassment if comments are “unwanted” and create a hostile or intimidating working environment. Generally, you take your victim as you find them and it is not a defence to say that the comments were “banter” or that the victim is too sensitive or that the comments were not directed at them.

Employers have a duty to dampen down any conflict in their workplace and should remind staff to respect each other’s opinions and not allow their own political/philosophical opinions to affect their work or the relationships they have with their colleagues. If problems arise, you must take swift and effective action to prevent problems escalating.

If you have undertaken thorough diversity training, your workforce should recognise that making derogatory comments about an individual or a group of people based on their nationality, race or philosophical beliefs is likely to get them into trouble (and in serious cases may result in dismissal). However, they may not necessarily consider that teasing someone for holding different political beliefs may also amount to bullying and you may therefore have to spell this out.

Is a belief in the EU or sovereignty of the UK a protected belief?

A belief in the EU or alternatively the sovereignty of the UK might be capable of being a “philosophical belief” protected under UK discrimination law. Whilst a “belief” has to be more than simply an opinion, employees who believe that they have been bullied for holding a contrary view on Brexit to the majority of their colleagues, may try and bring claims based on their beliefs if no action is taken to protect them. Previous cases have found that a belief in climate change, anti-fox hunting and left wing democratic socialist beliefs have all been held to be capable of protection.

Protecting the business from claims

Organisations will only avoid liability for harassment and bullying carried out by their staff if they can demonstrate that they have taken all reasonable steps to prevent it. Whilst bullying is not a legal claim in its own right (unless it amounts to harassment as the bullying is discriminatory), it can amount to a potential fundamental breach of contract giving rise to potential constructive dismissal claims, if the employer fails to take action and, for example, the employee loses all trust and confidence in their employer to deal with matters or provide a safe system of work. Whilst a policy will help, you must also demonstrate that you have trained staff and dealt with all incidents appropriately.

Protecting your staff from abuse from the public

In the week following the referendum there was a dramatic increase in reported racist attacks and hate crimes and businesses in some areas of the UK have already reported that staff recruited from outside the UK (and in some cases outside the EU) have been abused or threatened by customers or other members of the public.

Employers have a duty to protect the health, safety and welfare of their employees and must do whatever is reasonably practicable to achieve this. This means making sure that workers are protected from anything that may cause harm, effectively controlling any risks to injury or health that could arise in the workplace. Lone workers may be particularly at risk and they should be provided with basic safety training and support.

Summer 2016

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