The referendum rift: belief discrimination: avoiding fallout from an unsettled workforce

On the back of June’s referendum, it has been reported that employees who voted “leave” are facing “cultural bullying” in the workplace, harassment and hostile remarks for pro EU colleagues.  This type of behaviour has been identified as “cultural bullying” due to the divide between colleagues’ views.

Some employees have taken legal action against their employers as they believe they are suffering discrimination or harassment as a result of their philosophical belief.  The employees will need to be able to prove that the conduct they are facing is as a result of their political beliefs, which falls within the Equality Act 2010.  There are a number of limitations which their belief must satisfy:

• The belief must be genuinely held;
• It must be a belief rather than an opinion or viewpoint based on the present state of information available;
• It must be a belief as to a weighty and substantial aspect of human life and behaviour;
• It must attain a certain level of cogency, seriousness, cohesion and importance; and
• It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

Additionally, to establish a philosophical belief, the employees will need to:

• bring evidence to support the genuineness of the belief;
• bring evidence from which the tribunal could conclude that what was done was done on the grounds of this belief; and
• be cross-examined on both those areas of evidence.

The court’s findings in the case of Grainger v Nicholson [2010] IRLR 4 made it clear that the support of a particular political party might not amount to a philosophical belief – it might simply be a manifestation of that belief, rather than the belief itself.

But leaving to one side those somewhat technical hurdles associated with a philosophical belief claim, if it is right that an employee is suffering mistreatment at work at the hands of his or her colleagues or bosses this may lead to a claim of bullying. Whilst there is no free-standing claim for bullying in the tribunals, those with more than 2 years’ service could claim constructive unfair dismissal if the extent of the bullying became too much to bear such that they decided to leave because of it. It is worth bearing in mind that where employers themselves expressed forthright views one way or the other pre-referendum, then unfair treatment of employees holding contrary views might be rather easier to prove.

So what do we do now? Employers should take reasonable steps to prevent any of their employees from bullying, harassing or making hostile remarks for whatever reason and impose disciplinary sanctions for those who transgress. As a minimum employers need to ensure they have a written equal opportunities policy in place and ideally should provide equal opportunities training to employees, without which, such policies are largely a waste of time.

If you would like to discuss this e-Brief in further detail, please contact a member of the employment team on 0113 2270 243.