While the long-term employment law implications of the UK voting to leave the EU are still far from clear, we have identified a way in which Brexit is already directly affecting workplace relations even while we are still EU members. In particular, we have had a number of queries from employer clients where employees have complained of less favourable treatment by managers or colleagues based on the way they voted.
The referendum certainly gave rise to some strong feelings around the country, and it is perhaps inevitable that some of those feelings will carry over from people’s private life into the workplace. However, while most employees tend to be aware that they should avoid comments which are discriminatory on the grounds of protected characteristics such as gender, race, age or disability, many of them do not seem to be aware that political beliefs may also be protected in a similar way.
The reason why the protection is likely to apply is because it falls within the protected characteristic “religion or other belief” (section 10, Equality Act 2010). ‘Belief’ for this purpose is defined in the Act as “any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.”
Although when the Equality Act was first introduced, the Government stated that it was not intended to cover political beliefs, the case law has developed since. The lead case was Grainger v Nicholson (2009) in which a belief in climate change was found to be capable of meeting the definition. The Employment Appeal Tribunal specifically stated in Grainger that political beliefs were capable of protection, provided they were “worthy of respect in a democratic society.”
Since Grainger there have been a number of cases involving political beliefs. In particular there was the case of Redfearn (2013), where an employee who was dismissed for becoming a BNP candidate took his case to the European Court of Human Rights (ECHR). The ECHR decided that UK law was not compatible with Mr Redfearn’s right to freedom of association, and that he should be entitled to protection on the grounds of his political beliefs. (Our article on the Redfearn case can be found here). There was also a Tribunal level decision in the case of Olivier v DWP (2013) where a belief in democratic socialism (as held by a Labour party activist) was capable of protection, as we covered in our previous article here.
In the case of either Vote Leave or Vote Remain supporters, based on the current law it is likely that their opinions would qualify as an ‘other belief’ within the Equality Act. This means that they are protected against discrimination, harassment and victimisation on the basis of those opinions. For example, anecdotally there have been reports of those who voted Leave being referred to as racist, because of the campaign’s focus on immigration. If comments of that nature were made in the workplace then it could potentially lead to a harassment claim.
Employers will be vicariously liable for any harassment carried out by any employee on another employee unless they can show that they have taken all reasonable steps to prevent the harassment (see our previous article on vicarious liability here). Reasonable steps would depend on the circumstances and the size of the organisation, but could include reminding staff about the equal opportunities policy and potentially offering training.
The referendum result is a significant development for the UK, and it is understandable that colleagues at work may want to discuss the implications. It would be impossible for employers to prevent any such discussions from happening in the first place, but it is important that differing views are respected.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.