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Brexit banter may bite back

The B word is causing significant consternation in workplaces where once idle water cooler conversations are hijacked by the burning issue of the day. Respectful conversations between colleagues on the political consequences of the referendum have every risk of escalating into volatile and unpredictable exchanges. That is particularly so when the Remain or Leave route map remains unclear and the road ahead is likely to be bumpy.
There is clear potential for conflict between employees on Brexit and also between Employer and Employees. It is known that 51 FTSE 100 companies signed a letter backing that the UK remain in the EU. How that stated corporate view evolves remains is unclear but it is conceivable that many employees will hold strongly differing personal political beliefs from that publicly stated by their employer.

Employment Law does provide a framework of protection for employees from discrimination and harassment in the workplace for both the protected characteristics of nationality and the rather more esoteric philosophical belief. Both of these protections could be engaged by the Brexit debate. 

The legal concept of philosophical belief has been interpreted so as to enable potential employment tribunal claims where an employee is subject to less favourable treatment based on their political beliefs. That was never the intentions of the government when introducing the Equality Act in 2010.  It has, for example, been found that a belief in "democratic socialism" qualifies as a philosophical belief. The appeal tribunal explained that whilst "support of a political party" does not of itself amount to a philosophical belief, a belief in a political doctrine might very well qualify. The door is open to expanding protections and the Brexit scenario may well be covered. 

For an employee to rely on philosophical belief protections they will need to demonstrate more than just a loosely held view on Brexit. The Tribunals will require evidence that there is a genuinely held belief that is not merely a temporary expression or viewpoint and that the belief is worthy of respect in a democratic society. It is unlikely that an individual will meet this hurdle where they merely have a passing interest. Employers will seek to defend such claims by arguing that the Brexit view is a transitory belief and cannot have been held for a sufficiently long enough period to establish a certain level of seriousness. The battle lines will be drawn.

It is inevitable that social media channels will provide employees with an online forum to express their Brexit views. The fundamental legal protections will expand beyond the water cooler to the online world and we anticipate that there will be litigation that explores the boundaries of these developments.

Whilst the Scottish Referendum in 2014 did not manifest itself in an increase in reported employment tribunal litigation, the strength of feeling around Brexit indicates that employers should be mindful of the legal risks. They should consider the extent to which these risks can be managed via good HR practice, including the drafting of bespoke Brexit discrimination policies.

First published by The Scotsman on 25 July 2016.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2016. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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