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6 ways to prevent and deal with Brexit harassment on the construction site

Hate crime and abuse has been on the rise since Brexit, so what can you do to stop it being a problem on your sites?

It is a sad fact that, after the referendum result, there has been a reported rise in hate crime and racial abuse.

Employers in the construction sector need to be alive to this risk – an employee asking a colleague when they’re going ‘back home’ or comments of this sort are classed as unlawful harassment, even for comments that are made innocently or intended as ‘banter’ without any purpose to offend.

To be classed as unlawful harassment, someone must be offended or feel their dignity at work is adversely affected. However, many claims can arise when an individual overhears something about them, or gossip around the workplace gets back to them.

Unlawful racial harassment, according to the Equality Act, occurs where one employee engages in unwanted conduct related to race, nationality or national origin, and the conduct has the purpose or effect of violating another employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

The construction sector has a high proportion of EU workers.

Pre-referendum, Barratt Developments chief executive David Thomas estimated that 30-40 per cent of his workforce in London came from mainland Europe. He also commented in the press that it wasn’t unusual to find “10-plus nationalities on a London construction site”.

This creates a potential melting pot for employers, who need to be aware of the risk of ‘banter’ getting out of hand and employees feeling harassed and offended.

Here are a few points employers need to bear in mind:

1. Beware the word ‘immigrant’

Any conversation between employees that is immigration-related carries a degree of risk for any employer. Comments about ‘immigrants’ can be race-related and certainly have the ability to offend.

What carries a greater risk are comments directed at an employee precisely because of their race, nationality or national origin.

So referendum-related observations, such as “you won’t be able to work here soon”, directed at an employee born in Eastern Europe (for example) are race-related and it is entirely possible that it will cause offence.

2. Context is important

An academic discussion on the site about the merits of Brexit may be unlikely to reasonably offend, whereas badly expressed comments on immigrants or ‘jokes’ directed at an employee because of their nationality, will be unlawful harassment.

3. Don’t underestimate this issue or sweep it under the rug

This is a serious issue. For unlawful racial harassment occurring at work, the employer is liable for an employee’s conduct and the victim has a valid claim against the company. Damages are also uncapped (albeit still mainly based on loss).

Do also remember that who is considered an employee for discrimination is broader than for other purposes, so will include some people you consider contractors.

4. Beware banning Brexit talk

We have seen reports of some employers banning Brexit-related conversations at work altogether. This does seem an extreme over-reaction and may carry its own legal risk if enforced (albeit at least the message is clear).

In most construction environments the appropriate approach will be to take the opportunity at a toolbox talk or other briefing, to remind employees about their responsibilities. Think before you speak is a good message.

It is worth emphasising the Brexit connection and that race discrimination covers European nationality, as well as nationalities / ethnic origins which may more traditionally be considered to give rise to a discriminatory risk.

5. Consider diversity training

This can equip your employees with the knowledge to avert incidents occurring and can also give you a legal defence even if such comments are made.

6. Act swiftly and effectively

This will ensure a site where workers feel included and supported.

How exactly any such incidents are best addressed will depend upon what is said and to whom, and often what the ’victim’ wants will be key.

Organisations certainly do not need to dismiss everyone who expresses a view on immigration whilst working.

However do not just ignore potentially offensive comments – deal with them and stop them re-occurring.

Phil Allen is a partner in the employment, pensions and immigration team at Weightmans

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