Banning Brexit discussions at work may be valid

Employers need to avoid offending both customers and employees

In the run-up to the EU referendum, it was reported that some employers wrote to their staff expressing the company’s views on the best outcome for the country. This may not amount to instructions to vote in a particular way, but it could be assumed that a strong steer was being given.

Now we have the referendum’s outcome, some employers are apparently instructing their employees not to discuss the matter at work. In one shoe store, it has reportedly been made a disciplinary offence to speak about Brexit in front of customers on the basis that it may cause offence.

The referendum was the subject of many heated debates and the ‘leave’ vote is controversial for many. Immigration was one of the central issues of the Brexit campaign and there have been a number of reports of racist incidents since the vote. Many EU workers living in the UK are uncertain about their position and some may associate positive discussions about the outcome of the referendum with an anti-immigration viewpoint, even though Brexit campaigners argued that controlling immigration, not immigration itself, was their concern.

Talking about these issues risks offending customers, but could it also lead to discrimination claims from both customers and fellow employees? What would be a reasonable position for employers to adopt?

Race under the Equality Act 2010 includes colour, nationality, citizenship and ethnic or national origin. It is not necessary to have the protected characteristic personally; those associated with someone possessing a protected characteristic, or perceived as having it themselves, are also covered, so the number of those who could potentially be offended by racist remarks is extensive.

Also someone can discriminate without intending to do so. Motive is irrelevant, so an insensitive rather than malicious comment could be discriminatory, and even a relatively neutral discussion about immigration could fairly easily create an intimidating, hostile, degrading, humiliating or offensive environment on the grounds of race, thereby fulfilling one of the legal tests for discrimination.

This may be the case even if a customer was not the subject of the discussions and someone who felt this way could in theory bring a legal claim against the shop as a service provider. Employees in this situation could make an employment tribunal claim for workplace harassment. In both cases the employer is likely to be ‘vicariously liable’ (held responsible in law for other’s acts) if such claims were successful, and taking reasonable steps to prevent discrimination arising could potentially assist an employer defending a claim.

Employers are entitled to require employees to follow ‘reasonable instructions’; however, dismissing or disciplining an employee for breaching such instructions would have to be approached with care. The reasonableness of such an action would be scrutinised by an employment tribunal and its fairness considered on a fact-specific basis. Having a policy in place, with an explanation for its necessity, is likely to assist the employer’s position.

Employees could object to the instructions, or any disciplinary action arising from not following them, by arguing their belief in the ‘sovereignty’ of the UK (which they consider to be afforded by the Brexit vote) is a genuine philosophical belief and a protected characteristic under the Equality Act. Belief in this context excludes political belief, but the courts have interpreted non-political beliefs widely.

The legal test evolved through case law is that the belief must be genuinely held, worthy of respect in a democratic society, and must have a certain level of cogency. The courts have decided in different cases that beliefs in ‘democratic socialism’ and in ‘climate change’ were philosophical beliefs. If a tribunal decided a genuine belief in ‘sovereignty’ fitted the definition, it would then need to weigh up this right against the rights of those protected against discrimination on the grounds of race and the employer’s business needs.

Putting in place strong guidance on the limits on discussions about the Brexit vote, or even prohibiting such discussions absolutely, may be a valid protective measure in some workplaces where the risk of causing offence is considered to be high.


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