Brexit: four example bullying and harassment scenarios

Author: Clio Springer

The result of the EU referendum revealed divisions between different age groups and education levels, with feelings running high on both sides about the implications of the Brexit vote. An increase in hate crime and racial abuse has been widely reported.

Employers need to ensure that their employees do not become victims of bullying and harassment as a result of the Brexit vote. We present four examples of scenarios that might lead to claims against employers.

Introduction to the law on bullying and harassment

Under the Equality Act 2010, harassment related to a protected characteristic (for example, sex, race, religion or belief or age) is unlawful. Bullying is a form of harassment and claims about bullying will generally be brought under the harassment provisions in the Act.

Harassment is defined as unwanted conduct related to a relevant protected characteristic that has the "purpose or effect of violating [a person's] dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for [a person]".

It is also unlawful to discriminate or harass an individual based on his or her association with someone with a protected characteristic or because of a perception that he or she has a particular protected characteristic.

Employers risk liability for discriminatory acts of harassment committed by their employees against other employees or customers in the course of their employment unless they can show that they took such steps as were reasonably practicable to prevent those acts. By implementing effective anti-harassment policies and promptly addressing complaints, employers can reduce the likelihood of successful claims.

Further, employees with sufficient service could resign and claim unfair constructive dismissal if the employer's actions or failure to act (for example by failing to address bullying complaints) amount to a fundamental breach of contract. The harassment would not need to be related to a protected characteristic for a constructive dismissal claim to succeed.

Example 1: racial harassment

Scenario

Wanda is a Polish national who works in a nursing home. She has worked for the same employer for three years. Her employer, concerned about reports of racial abuse has reminded all staff that they must comply with its Dignity at Work policy. On a number of occasions, the son of one of the home's residents has confronted Wanda and said that, now that the UK is leaving Europe, he is happy that his mother won't be cared for by foreign workers like her any more. She complains to her employer but it says there is nothing it can do as the complaint is not about another employee.

What harassment claim could Wanda bring?

Explanation

The specific third-party harassment provisions in the Equality Act 2010 were repealed from 1 October 2013. However, an employer can still be liable for discrimination if it fails to intervene in the event of third-party harassment and the reason for its failure is a protected characteristic. So in this scenario, Wanda's employer could still be liable under the Act for the resident's son's conduct if it fails to intervene to prevent or stop the harassment because of Wanda's race, if it would have intervened to stop harassment of another employee who was not Polish.

As Wanda has sufficient service, she could also resign and bring a claim of unfair constructive dismissal on the basis that the employer's failure to deal with the situation could amount to a fundamental breach of her contract.

Example 2: racial harassment

Scenario

Mark has worked in an engineering workshop, where there is a lot of banter, for six months. He and the other engineers often meet up in the pub after work, sometimes with their partners. Mark's girlfriend, Maria, is Spanish. His colleagues keep joking that she will have to "go home to Spain" now and that she won't be welcome at their get-togethers anymore. He asks his colleagues to "give it a rest" as Maria has been upset at the outcome of the Brexit vote and this has affected him. However, this makes his co-workers' behaviour worse and some of the jokes becomes offensive. He stops being invited to the pub and feels excluded. He informs the manager of the workshop who tells Mark not to bother him with petty complaints about banter.

What harassment claim could Mark bring?

Explanation

Although the jokes are not because of Mark's own race, he could argue that he is a victim of harassment because of his association with Maria. The banter is creating a hostile and offensive working environment for Mark, so he could bring a claim, particularly given his employer's failure to deal with the situation. The employer cannot rely on banter as a defence against harassment.

Scenario

Gerry is in his 60s and has worked for his employer, a finance company, for eight years. The majority of his colleagues are in their 20s and 30s. There has been a lot of lively discussion about the Brexit vote and it is clear that the young members of the team hoped for a "remain" outcome. Gerry voted in favour of remain himself and is surprised and upset when he hears one of his young colleagues saying, well within earshot, how she resents "all these stupid older people who voted to leave, ruining our opportunities". The other young people in the office tell her to calm down, not to be so rude and that everyone is entitled to vote how they want.

What harassment claim could Gerry bring?

Explanation

Gerry might claim harassment related to the protected characteristic of age, citing the comments of one his colleagues. However, the employer could argue in its defence that, as this was a single incident and the perpetrator's colleagues did not hesitate to show that they disagreed with her, his dignity was not violated and he was not exposed to an "intimidating, hostile, degrading, humiliating or offensive environment".

As he has eight years' service, Gerry could also bring a claim of unfair constructive dismissal. However, this would be an extreme course of action for him as he would need to resign to bring a claim and be able to show that his employer was guilty of a fundamental breach of his contract.

Scenario

There have been a lot of discussions about the outcome of the EU referendum in Elaine's office. She is one of the few people in her workplace who voted to leave the EU and when they find out, four of her colleagues strongly berate her, accusing her of having racist views and a "little Englander" mentality. Her decision to vote for Brexit was based on her view of the EU as a bureaucratic and wasteful institution and on her strong conviction that the UK Parliament should determine the laws affecting people living in the UK. Her decision was nothing to do with the free movement of workers, which she has always been happy with. She complains to her employer about what was said, but it takes no action.

What harassment claim could Elaine bring?

Explanation

While discussion about the outcome of the referendum is inevitable, this does not entitle employees to belittle or berate colleagues who voted differently from them, regardless of how strongly they feel about it. Harassment related to religion and belief is unlawful under the Equality Act 2010 and Elaine could bring a claim on this basis. A "belief" under the Act can be any religious or philosophical belief or lack of belief. Whether or not a belief about the UK and its relationship with the EU could amount to a belief under the Act is not tested but recent case law suggests that what amounts to a belief can be quite wide-ranging.