An employers’ guide to handling post-Brexit workplace tensions

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There is a cartoon currently doing the rounds on Facebook of a slightly jaded looking character muttering, ‘Here we go – suddenly everyone is an expert on politics’.   Certainly, the EU referendum has both engaged and divided the UK population in a way seldom seen. In the current climate of political upheaval, emotions (and in some cases unacceptable bigotry) are running close to the surface.  In extreme cases, the divisions may be manifested as racial or religious abuse.  According to statistics from the National Police Chiefs’ Council there was a 57% increase in reported race related incidents between Thursday 23 June and Sunday 26 June 2016 compared with the same period four weeks earlier.  So, if a ‘Brexit related’ argument, fracas or incident of discrimination should occur in the workplace how should an employer best respond?

We have prepared some pointers for managing staff in the current climate.

Deal immediately with any ‘murmurings’ of racial or religious harassment.

The Equality Act 2010 makes employers liable for the actions of their employees in relation to other staff even if the employer does not condone the conduct. An employer has a potential ‘statutory defence’ if it can show that it took all reasonable steps to prevent the discrimination from occurring but these steps must have been taken before the discrimination occurred. It is not possible to shut the stable door after the horse has bolted. The statutory defence is a relatively high hurdle to clear which requires more than just having an Equality or anti-discrimination policy or giving staff training on discrimination during induction. The employer must be able to show that it actively took steps (on an ongoing basis) to prevent discrimination from happening in the workplace.  This might include ongoing diversity awareness training, engaging staff in anti-discrimination initiatives, internal communications advocating and celebrating diversity and monitoring and dealing with concerns raised in an effective and timely way.

Be aware that staff making negative or disparaging comments about ‘immigrants’ in the aftermath of the Brexit vote should sound real warning bells. Take action straight away if you become aware that this is going on. Turning a blind eye is a recipe for disaster.  Yes, staff are entitled to freedom of speech but as soon as this infringes another employee’s right not to be discriminated against the risk of a legal claim arises.  In any event, few would disagree that any level of bigotry in the workplace is simply not good for business.

Remember that employers can be liable for discrimination occurring outside of the workplace.

It is well established that employers can be held liable for acts of discrimination occurring outside the workplace at events connected with work such as office outings, organised social events or even, in some cases, between colleagues on social media. Whether an employer is liable will always be fact specific but the golden rule is to advise employees that the same standards of behaviour towards colleagues are expected at workplace events and in interactions on social media. It is worth checking that your Equality policies and procedures spell this out too.  If a concern is raised, do not automatically dismiss it on the basis that it happened off-site.   If there is a work connection (even if it seems a little tenuous) then the employer may potentially be on the hook.

Manage political disagreements effectively

Everyone is entitled to their opinion and there is no law against discussing politics at work (as long as the discussion does not amount to discrimination or harassment on grounds of a protected characteristic such as race, religious belief, sex, sexual orientation etc).

That said, if a political discussion becomes unduly heated, disruptive or has an impact on employees’ ability to do their work effectively and within required timescales then the employer is quite entitled to step in and request that the discussion stops and that people get on with their work. Never forget that the ‘employment bargain’ (i.e. a day’s work for a day’s pay) means that an employer is entitled to manage staff, make reasonable requests and apply a consequence if the employee does not comply.  If an employee fails to comply with a reasonable request (e.g. stop arguing with a colleague and get on with their work) then the employer is entitled to treat it as a potential disciplinary matter.  If the employee is on a formal warning and repeats the conduct then the employer is entitled to move to the next stage of the disciplinary process and so on (following the disciplinary procedure) until dismissal becomes a potentially fair outcome. It may seem obvious but it bears repeating!

If you feel that your managers lack confidence or are unsure of their footing when dealing with political (or other) disagreements between staff at work then now may be a good time to consider providing some refresher training in this area. Managers need to feel empowered and confident in managing the day to day ‘rough and tumble’ of the workplace.  Such managers are significantly more effective, respected and are good for morale.  They can save an organisation thousands by deftly heading off issues that, badly handled, might morph into messy ‘he said, she said’ type grievances or expensive and morale-damaging discrimination claims.

Stay on top of current immigration and ‘right to work’ rules

These are turbulent times and now, more than ever, it is important to stay up to date with immigration and right to work requirements.   For example, ensure that all new recruits are subject to immigration checks (not just those with English as a second language, who are non-white or with foreign accents).  Never make an assumption based on appearances about who may or may not have the right to work in the UK.  Immigration rules are complex and provide fertile ground for scoring an own goal so make sure that your recruitment processes are 100% sound and non-discriminatory.  Walker Morris has a business immigration team who can assist you with any queries you may have in this area.

If you would like further advice or would like to discuss the training that our team can provide please contact David Smedley or Andrew Rayment.