News & Events

Beware of post-Brexit discrimination and harassment in the workplace

Submitted By Firm: Addleshaw Goddard

Contact(s): Michael Leftley, Sarah Harrop


Amanda Steadman Annabel Mackay

Date Published: 8/18/2016

Article Type:

Share This:

Last week's vote to leave the European Union has sent significant shockwaves across our society. In this article, we consider the immediate risks, and the steps employers should take to prevent tensions spilling over into harassment in the workplace.

The momentous decision to leave the European Union has set the wheels in motion for years of exit negotiations. Although formal exit may be years away, immediate shockwaves have been felt across our society:

  • Remainers are petitioning for a second referendum and making their views known on social media with the hashtag "Notmyvote".
  • Protests against Brexit were expected in Trafalgar Square and other cities on 28 June 2016.
  • There have been calls for Scotland, Wales and even London to become independent EU states.
  • Brexit has also been described as a clash of generations with 75% of people aged between 18-24 claiming that they voted for Remain in the YouGov survey.
  • More worringly, there have been reports of racial tensions with community centres being vandalised and ethnic minorities receiving verbal and written abuse. Twitter and Facebook pages have been set up for victims to report incidences of post-referendum racism (see @PostRefRacism).

Employers must be careful to monitor these shockwaves within the workplace and take steps to prevent confusion and tension spilling over into discrimination and harassment.

Harassment of EU migrant workers

The first, perhaps most obvious, area for concern is liability for discriminatory remarks by employees. Since the referendum, EU nationals have reported a rise in xenophobic attitudes, for example, being asked by colleagues when they are planning to "go home" or how long they have been in the UK.

Harassment occurs when remarks have the purpose or effect of violating an individual's dignity or creating a hostile working environment. So, an employer would be liable for remarks which have the effect of undermining an individual's dignity at work, whether the comment was intentional or not. Asking a worker when they intend to "go home", or similar remarks, however intended, could potentially amount to discriminatory harassment.

It is also important to remember that a complainant need not be the recipient of such remarks either. A person may suffer harassment by association (for example, if an employee is asked about the status of relatives who are EU migrants) or by perception (if they are perceived to be an EU migrant when they are, in fact, British).

There have also been past cases where employers have instructed employees not to speak in a language that colleagues do not understand at work. In some cases, the employer has been able to demonstrate a reason that was unrelated to nationality or national origins. In other cases, where the instruction has extended to communications during break times, the employer's actions have been found to constitute harassment. In the tension associated with Brexit, it may be more difficult for employers who give such instructions to defend their position and avoid complaints of discrimination on the grounds of nationality.

Harassment on the grounds of age

While press reports have focused on tensions along nationality lines, divisions along age lines should not be overlooked. The analysis of the voting reveals a gap in the voting patterns of young and old. Social media is awash with angry comments from younger voters who favoured Remain and responses from Leavers. On Monday, the Guardian reported on family rifts over Brexit with one Remainer stating that she was worried Brexit has made her ageist and that upon seeing an older couple on the street she felt "a sudden, enormous wave of fury towards them and their generation".

We have seen workplace discrimination complaints based on remarks like: "You can't teach an old dog new tricks." It is easy to imagine how arguments about the Brexit vote might break out in the workplace and descend into age-related insults on both sides with the young dismissed as "naïve" and the old described as "out of touch".

Harassment on the grounds of philosophical belief

Could a pro-Leave employee complain of harassment on the grounds of philosophical belief where the Brexit outcome is denounced by angry Remainers? Would a Remainer wearing a "Not in my name" badge or an "I'm with the 48%" T-shirt cause offence and create a potential liability for an employer?

Discrimination because of religion or philosophical belief is protected under the Equality Act 2010. In order to qualify for protection, a philosophical belief must have the seriousness, cogency, cohesion and importance of a religious belief. It must be worthy of respect in a democratic society and not incompatible with human dignity.

The case law on philosophical belief shows that it can have wide application. In Grainger Plc v. Nicholson, belief in man-made climate change qualified for protection. There is also a first instance Tribunal decision where a political belief in democratic socialism by a Labour Party member was protected. However, there have been other cases where political beliefs have not attracted protection because they lacked coherence or were incompatible with human dignity.

Nonetheless, the risk is there and it would be advisable for employers to monitor the tone of discussions and behaviours connected with the Brexit vote.

Discrimination in recruitment

Finally, employers need to be careful not to inadvertently discriminate against, or harass, EU migrant job applicants during the recruitment process.

Employers must not discriminate against job applicants by not offering them a job on the grounds of race (which covers nationality). A decision not to offer a post to a job applicant on the basis that they are an EU national, and their future right to work status is uncertain, could amount to race discrimination. Similarly, employers should avoid asking interview questions such as: "Have you any plans to go home?". This could potentially amount to harassment.

Employers should remember that unless, and until, there is a formal withdrawal from the EU, EU nationals retain the right to live and work in the UK.


Whilst each situation will turn on its own facts, now more than ever, employers must emphasise the importance of having a working environment in which different views can co-exist and where everybody's dignity is respected.

As with all discrimination complaints, employers should be wary about relying on their equal opportunities policies alone. If such policies have been gathering dust, it would be prudent to reiterate the commitment to equal opportunities through internal communications and senior executive sponsorship.

In order to defend an harassment complaint, employers must demonstrate that they have taken all reasonable steps to avoid discrimination occurring. Turning a blind eye to high-octane discussions in the workplace, even in these heady times, is not advisable.

Find a Member

View or print a complete ELA member list »

Client Successes

Altra Industrial Motion Inc.

Altra Industrial Motion Inc. has multiple locations in the U.S., as well as Central America, Europe, and Asia. The Employment Law Alliance has proved to be a great asset in assisting us in dealing with employment issues and matters in such diverse venues as Mexico, Australia, and Spain. We have obtained excellent results using the ELA network for matters ranging from a multi-state review of employment policies to assisting with individual employment issues in a variety of foreign jurisdictions.

In one instance, we were faced with an employment dispute with a former associate in Mexico that had the potential for substantial economic exposure. The matter had been pending for over a year, and we were not confident in the employment advice we had been receiving. I obtained a referral to the ELA counsel in Mexico, who was able to obtain a favorable resolution of the dispute in only a few days. Based on our experiences with the ELA, we would not hesitate to use its many resources for future employment law needs.

American University in Bulgaria

In my career I have been a practicing attorney, counsel to the Governor of Maine, and CEO of a major public utility. I have worked with many lawyers in many settings. When the American University in Bulgaria needed help with employment litigation in federal court in Syracuse, New York, we turned to Pierce Atwood, the ELA member we knew and trusted in Maine, for a referral. We were extremely pleased with the responsiveness and high quality of service we received from Bond Schoeneck & King, the ELA's firm in upstate New York. I would not hesitate to recommend the ELA to any employer.

David T. Flanagan
Member of Board of Trustees 

Arcata Associates

I really enjoyed the Conducting an Effective Internal Investigation in the United States webinar.  We are in the midst of a rather delicate employee relations issue in California right now and the discussion helped me tremendously.  It also reinforced things that you tend to forget if you don't do these investigations frequently.  So, many, many thanks to the Employment Law Alliance for putting that webinar together.  It was extremely beneficial.

Lynn Clayton
Vice President, Human Resources

Barrett Business Services, Inc.

I recently participated in the ELA-sponsored webinar on the Employee Free Choice Act.  I was most impressed with that presentation.  It was extremely helpful and very worthwhile.  I have also been utilizing the ELA's online Global Employer Handbook.  This compliance tool is absolutely terrific. 

I am familiar with several other products that purport to provide up-to- date employment law information and I believe that this resource is superior to other similar compliance manuals.  I am delighted that the ELA provides this free to its members' clients.

Boyd Coffee Company

Employment Law Alliance (ELA) has provided Boyd Coffee Company with a highly valued connection to resources, important information and learning. With complex operations and employees working in approximately 20 states, we are continually striving to keep abreast of specific state laws, many of which vary from state to state. We have participated in the ELA web seminars and have found the content very useful. We appreciate the ease, cost effectiveness and quality of the content and presenters offered by these web seminars.  The Global Employer Handbook has provided our company with a very helpful overview of legal issues in the various states in which we operate, and the network of attorneys has helped us manage issues that have arisen in states other than where our Roastery and corporate headquarters are located in Portland, Oregon.

Capgemini Outsourcing Services GmbH

As an international operating outsourcing and consulting supplier Capgemini has used firms of the Employment Law Alliance in Central Europe. We were always highly satisfied with the quality of employment law advice and the responsiveness. I can really recommend the ELA lawyers.

Hirschfeld Kraemer

Stephen HirschfeldAs an employment lawyer based in San Francisco, I work closely with high tech clients with operations around the globe. Last year, one of my clients needed to implement a workforce reduction in a dozen countries simultaneously. And they gave me 48 hours to accomplish this. I don't know how I could have pulled this off without the resources of the ELA. I don't know of any single law firm that could have made this happen. My client received all of the help they needed in a timely fashion and on a cost effective basis.

Stephen J. Hirschfeld

Hollywood Entertainment Corporation

As the Vice President for Litigation & Associate General Counsel for my company, I need to ensure that we have a team of top-notch employment lawyers in place in every jurisdiction where we do business. And I want to be confident that those lawyers know our business so they don't have to reinvent the wheel when a new legal matter arises. With more than 3400 stores and 35,000 employees operating in all 50 U.S. states and across Canada, we rely on the ELA to partner with us to help accomplish our objectives. I have been delighted with the consistent high quality of the work performed by ELA lawyers. I encourage other in-house counsel to use their services, as well.

Ingram Micro

Ingram Micro is the world's largest technology distributor, providing sales, marketing, and logistics services for the IT industry around the globe. With over 13,000 employees working throughout the U.S. and in 35 international countries, we need employment lawyers who we can count on to ensure global legal compliance. Our experience with many multi-state and multi-national law firms is that their employment law services are not always a high priority for them, and many do not have experts in many of their offices. The ELA has assembled an excellent team of highly skilled employment lawyers, wherever and whenever I need them, and they have proven to be an invaluable resource to our company.

Konami Gaming

Our company, Konami Gaming, Inc., is growing rapidly in a very diverse and highly regulated industry. We are aggressively entering new markets outside the domestic U.S., including Canada and South America. I have had the recent opportunity to utilize the services provided by the ELA. The legal advice was both responsive and professional. Most of all, the entire process was seamless since our Nevada attorney coordinated the services and legal advice requested. I look forward to working with the ELA in the future, as it serves as a great resource to the legal community.

Jennifer Martinez
Vice President, Human Resources

Nikkiso Cryo, Inc.

Until recently, I was unaware of the ELA's existence. We have subsidiaries and affiliates throughout the United States, as well as in Asia, the Middle East and Europe. When a recent legal issue arose in Texas, our long-time Nevada counsel, who is a member of the ELA, suggested that this matter be handled by his ELA colleague in Dallas. We are very pleased with the quality and timeliness of services provided by that firm, and we are excited to now have the ELA as an important asset to help us address employment law issues worldwide.

Palm, Inc.

The ELA network has been immensely important to our company in helping us address an array of human resources challenges around the world. I strongly encourage H.R. executives who have employees located in many different jurisdictions to utilize the ELA's unparalleled expertise and geographic coverage.

Stacy Murphy
Former Senior Director of Human Resources

Rich Products

As the General Counsel for a company with 6,500 employees operating across the U.S. and in eight countries, it is critical that I have top quality lawyers on the ground where we do business. The ELA is an indispensable resource. It has taken the guesswork out of finding the best employment counsel wherever we have a problem.

Jill K. Bond
Senior Vice President/General Counsel, Shared Services and Benefits

Ricoh Americas Corporation

We have direct sales and service offices all over the U.S., but have not necessarily had the need in the past for assistance with legal work in every state where we have a business presence. From time to time, we suddenly find ourselves facing a legal issue in a state where we have no outside counsel relationship. It has been a real benefit to know that the ELA has assembled such an impressive team of experts throughout the U.S. and overseas.

A few years ago, we faced a very tough discrimination lawsuit in Mississippi. We had never had to retain a lawyer there before. I was absolutely delighted with the Mississippi ELA firm. We received an excellent result. They will no doubt handle all of our employment law matters in Mississippi in the future. I have also obtained the assistance of several other ELA firms around the U.S. and have received the same outstanding service. The ELA is a tremendous resource for our company.

Roberts-Gordon LLC

Our affiliated companies have used the Employment Law Alliance in connection with numerous acquisitions, and have always been extremely pleased with our ability to obtain the highest quality legal advice on due diligence issues from jurisdiction to jurisdiction. We have found the Employment Law Alliance firms to be not only first rate with respect to their legal advice but also responsive and timely in assisting us with federal and state law issues critical to our due diligence efforts. We consider the Employment Law Alliance to be an important part of our team.

Rockwell Collins, Inc.

We have partnered with many ELA firms on the development and execution of case management strategies with very positive results. We have been very pleased with the legal advice and counsel provided by the law firms we have utilized who are affiliated with the Employment Law Alliance. The ELA firms we have worked with are customer focused, responsive, and thorough in their approach to handling labor and employment law matters.

Elizabeth Daly
Assistant General Counsel


Sanmina-SCI has facilities strategically located in key regions throughout the world. Our customers expect that we will provide them with the highest quality and most sophisticated services in the marketplace. We have that same expectation for the lawyers with whom we do business. With operations in 17 countries, we need to be certain that we have a team of lawyers working together to address our employment law needs worldwide. The ELA has delivered exactly what it promised-- seamless and consistent high quality services delivered in each locale around the globe. It has quickly become a key asset for our human resources department.


We own, manage, and franchise hotels throughout the U.S. and in more than 90 countries. With more than 145,000 employees worldwide, ensuring that we comply with the complex web of local labor and employment laws in every one of these jurisdictions is a daunting task. The Employment Law Alliance has served as an important resource for us and we have benefited greatly from its expertise and long reach. When a legal dispute or issue has arisen in some far-flung place, Employment Law Alliance lawyers have always provided responsive, practical, and cost-effective assistance.

Wilmington Trust Corporation

Wilmington Trust has used the ELA to locate firms in California, Washington State, Georgia, and Europe. Our experience with the ELA lawyers with whom we have worked has always been one of complete satisfaction and prompt, practical advice.

Michael A. DiGregorio
General Counsel