Handling Brexit harassment

With a rise in hate offences following the vote to leave the EU, employers need to be aware of the risks of race-related harassment at work and take action to mitigate those risks, says Phil Allen.

Since the outcome of the EU referendum we have seen an increase in reports of race-related harassment, often with a Brexit link. Whether this is a short-term spike or a more worrying long-term trend, companies need to be aware of the risks arising from such harassment and, where possible, should try to address these risks.

Under the Equality Act, race-related comments that are deliberately intended to offend are likely to be unlawful harassment. Comments that were not intended to offend, but do so, are also harassment (when reasonably that might be the case). So innocently intended observations or “banter” can be harassment. The law says that unlawful racial harassment occurs where one employee engages in unwanted conduct related to race, nationality or national origin, and the conduct has the purpose or effect of violating another employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that other employee.

Unlawful harassment requires that someone must be offended or feel their dignity at work is adversely affected; however, many claims we see arise from a person who overhears something that was not necessarily intended for their ears (or eyes when email and social media are used).

This means that any conversation between employees that is immigration related carries a degree of risk for any employer. Comments about immigrants generally can be race related and certainly have the ability to offend.

However, what carries a far greater risk in practice are comments directed at an employee precisely because of their race, nationality or national origin. The referendum seems to have provided an apparent licence for such comments. For example, comments such as “are you still here?” or “why don’t you go home?” directed at an employee born in, say, eastern Europe are race-related and it is entirely likely that the employee subject to the comments will be offended, possibly upset, and in a worst case scenario they may feel unable to continue working for you.

Statistics

• 289 – the number of reported hate offences reported across the UK on 25 June 2016
• 42 per cent – the increase in hate crimes reported in the last two weeks of June 2016 compared with the same period in 2015
• 3,076 – the number of hate crimes and incidents reported to police in the second half of June 2016
• 12,000 – the estimated “real figure”, with past studies suggesting just one in four hate crimes are reported to police

The context in which comments are made can be important. Where an employee maintains that comments have undermined their dignity at work or created an offensive/humiliating environment, the legal limit to unlawful harassment is whether it is reasonable for the conduct to have that effect. The recipient’s perception and the circumstances of the case are taken into account when deciding whether it is reasonable for the employee to be offended.

For example, a two-way detailed discussion about the merits of Brexit, including views on freedom of movement, is likely to be held not to reasonably offend. However, such a legal argument won’t wash for badly worded comments made during such a conversation or comments directed at an employee because of their nationality. Broadly, if it appears at all reasonable for your employee to be offended by what was said, it will be unlawful harassment.

The risk arising cannot be ignored. For unlawful racial harassment occurring at work or in the course of employment (which is widely applied), the company is liable for an employee’s conduct and the employee-victim has a valid claim against the company (as well as the against the person who made the comment). Damages are uncapped and therefore are potentially far higher than those that can be recovered from an ordinary unfair or constructive dismissal claim.

So what can you do about it? At the most extreme we have seen reports of some employers banning Brexit-related conversations at work. This does seem an overreaction and may carry its own legal risk if enforced. However, it certainly sends out a clear message and might stop risk arising.

In most workplaces, the more appropriate approach will be to take the opportunity to remind employees about their responsibilities and to promote an inclusive environment. Think before you speak is a good message. It can be worth emphasising the Brexit connection and that race discrimination covers European nationality, as well as nationalities or ethnic origins that might more traditionally be considered to give rise to a discriminatory risk. At its strongest, a robust programme of diversity training can not only equip your employees with the knowledge to avert incidents, but can also give you a legal defence even if such comments are made.

The most important thing any employer can do is to address potential issues swiftly and effectively. Doing so will create a working environment where staff feel included and supported. How exactly any such incidents are best addressed will depend upon what is said and to whom, and often what the “victim” wants will be key.

Organisations certainly do not need to dismiss everyone who expresses a view on immigration while working. However, do not ignore potentially offensive comments, because next time there is a “quip” about immigrants or an employee’s future in the UK, it could result in a successful claim.