Legal Update: Employer obligations during periods of civil unrest

In wake of recent civil unrest, REC members may be faced with employee related issues that require a considered response. Many issues will require REC members to consider their legal obligations towards their staff.

Employee safety and working arrangements

Employers owe their employees a common law duty of care and have a legal responsibility to ensure the health and safety of employees. Failure to meet these obligations could result in liability for mental and physical injury caused or made worse by exposure to health and safety hazards. Additionally, workers are protected from being subjected to detriments and in some circumstances from dismissal by their employer if they leave their work environment because they reasonably believe that it presents an immediate risk of danger.

In the current climate, employees may feel that they are not safe at work if their place of work is close to a targeted area for protests or leaving and/or returning to their home is a risk to their safety.

Employers should therefore monitor events closely and carry out risk assessments. Employers should consider homeworking where appropriate and/or allowing flexible work with adjusted start and finish times. Employers should consider requests for flexibility during this time seriously, justifying any refusals in writing and clearly explaining their reasoning.

Discrimination

Workers are protected from discrimination on the basis of protected characteristics under the Equality Act 2010. Protected characteristics include race and religion or belief. Under the Equality Act, race is defined as nationality, ethnic origins and skin colour whilst reference to religion includes those who belong to a religion and to a lack of religion. Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

The Equality Act prohibits indirect discrimination and harassment based on the protected characteristics. Indirect discrimination is the application of a provision criterion or practice (PCP) to a group of people which places those with protected characteristics at a disadvantage. Indirect discrimination can be justified by showing that the application of the PCP is a proportionate means of achieving a legitimate aim.

The Equality Act defines harassment as unwanted conduct related to a protected characteristic, with the purpose or effect of violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. It is therefore possible for a worker to be subjected to harassment based on a protected characteristic that they do not have; they simply have to show that the conduct they have been subjected to meets the definition of harassment under the Equality Act.

Employers should be mindful of potential Equality Act breaches in their responses to current events. Due to the nature of the unrest, employers should consider whether requirements for staff to attend work in person or to maintain their usual start and finish times could be indirectly discriminatory. Because the unrest is reported to be racially aggravated, ethnic minority staff could find it harder to comply with a requirement to attend work because of their race and fear of attacks.

 Careful consideration should also be given to any messaging published about current events internally and externally to avoid making statements that could be construed as harassment.

Expressions of opinions on current events

Employers will be liable for any harassing statements and/or conduct by their staff in the course of work unless they can show that they took reasonable steps to prevent harassment. Employers can show that they have taken reasonable steps through policies, training that they have facilitated for their staff on discrimination and any messaging they have put out about the conduct of their staff in relation to current events.

Employees can be subjected to disciplinary procedures for conduct they engage in inside and outside of work for example on social media. An employer can discipline and/or potentially dismiss an employee for offensive statements and actions that incite discrimination and violence. Employers should be able to distinguish between expressions of belief and statements inciting discrimination and violence. Expressions of belief are protected under the Equality Act and any unfavourable treatment of an employee based on an expression of a protected belief could be an act of discrimination under the Equality Act.

The Employment Rights Act 1996 (ERA) sets out potentially fair reasons for dismissal. These reasons include conduct). It is possible to fairly dismiss an employee for offensive and/or discriminatory statements made inside or outside work on the grounds of conduct. However, it will only be fair to discipline an employee on these grounds if there are clear policies and a fair process is used.

For a dismissal to be fair it must be for one of the fair reasons set out in ERA 1996 which includes conduct, and the employer should have followed a fair procedure in coming to the decision to dismiss an employee. This means that a fair and transparent process must have been followed before reaching the decision to dismiss.

Generally, a fair process will require an employer to show that they have investigated the circumstances relating to the conduct and has a clear disciplinary policy that addresses conduct outside of work for example on social media that they consistently apply. Employees should be offered their opportunity to respond to allegations about their conduct before any disciplinary decisions are taken.

For assistance with specific enquiries please contact the REC legal helpline.