With multinational workforces a fact of life, employers
must be vigilant to ensure that national pride does not spill over
and become a more serious issue. In the final article in our series
covering the 2012 summer of sport (Euro 2012 and London Olympics)
employment issues, lawyers in our
Employment Team answer some questions which you may be faced
with.
The Olympics and recent Euro 2012 events can cause national pride
to be an issue in the work place. Peter Jones answers some frequent
questions on this topic.
We have many different nationalities in our workforce and there
will inevitably be a lot of banter and rivalry during Euro 2012 and
possibly during the London Olympics. During the last World Cup, for
example, there were some derogatory and 'unrepeatable'
expressions used to describe the Dutch. Do I need to worry about
this from a discrimination angle?
Whilst it may seem like you are spoiling all the fun, the
fact is 'yes' you do need to worry about this. The
definition of harassment is such that if the language or banter
offends someone, it could result in a claim of harassment on the
grounds of race or national origin, even, using your example from
the last World Cup, if the person complaining is not Dutch! You
need to place controls on the use of language which could be viewed
as derogatory against other nationalities. The good news is,
however, that unless the language is particularly offensive, one
comment is unlikely to result in a claim, especially if stamped on
quickly. This does not mean that that employee cannot bring a claim
on the basis of an isolated offensive comment based on sex, race,
disability etc, but it is just more unlikely.
Don't forget that employers may be held liable for the actions
of their employees deemed to have been carried out "in the
course of employment". The "course of employment"
does not just cover incidents occurring at the workplace itself,
but would also cover any other situation where there is a link back
to work. For example, if a group of employees went to the pub to
watch a game or Olympic event together, incidents occurring there
might still be deemed to be "in the course of
employment".
We are planning on having a dress down day during the
Olympics to raise money for charity. Those who dress in GB colours
pay a pound, otherwise it is two pounds. Is that ok?
While being encouraged to dress in red, white and blue
colours may not go down well with those from other countries
(except the French, Dutch, Russian, USA, Cuban and some others), it
could be taken as a bit of fun and cause no problems. However,
looking at the issue from the perspective of non GB (etc.)
nationals, they could complain that they are being penalised for
wearing their own national colours or at least not wearing GB
colours. So, on balance it would be a far better solution to
encourage staff to dress in whatever national colours they like and
charge £2 for dress down. Hopefully that would raise more
money for charity and save the risk of offence and
discrimination.
As with any themed dress down day, you should be sensitive to any
potential problems arising from dress codes causing issues with
religious dress or creating an environment where 'banter'
crosses over into harassment.
England's Euro 2012 Group game against France is on a
Monday at 5 pm and we are letting staff watch it. Employees of
other nationalities have asked if they can watch their
countries' matches instead. Can I say "no"?
You can say "no" to such requests, but it could
be risky. In this situation, employees affected by this decision
cannot claim to have been directly discriminated against because
presumably in response to requests to watch other games, you will
say 'no' to everyone. However they may argue that they are
being indirectly discriminated against on the grounds of race
because they are placed at a particular disadvantage when compared
to, say, English employees who have been allowed to watch an
England game. As indirect discrimination can be justified, however,
if you can show good business reasons why the other matches cannot
be viewed, a claim of indirect discrimination could be defended
successfully.
From a practical and legal perspective, parts of your workforce of
different nationalities may well object to not being allowed to
watch their national side while you permit the watching of England
games and they could claim indirect race or national origin
discrimination. It would therefore be better to plan carefully and
come up with a flexible plan whereby staff can book time to watch
matches involving their national teams without disrupting work
across the organisation.
A simpler, but probably less popular solution would be to prohibit
employees watching any games during working hours. Obviously in
some working environments this would be entirely appropriate, but
you should consider the risk of self certified absence causing
greater problems than controlled and organised access to viewing or
online monitoring of matches at work. Remember that you should also
get a TV licence if you do not normally have a licensed television
in the workplace.
What about those who just aren't interested in watching
the football?
The common perception is that it will be the male staff
who benefit the most from being allowed time off to watch the
football. To the extent that this is true, exactly the same
principles apply as above. There is no problem if the option of
watching the match or matches is open to all, but there could be
indirect discrimination issues if female staff are left behind with
increased workloads.
Interestingly, a survey revealed that, of the people watching the
2010 World Cup in this country, 49 percent were women, showing that
the common perception is not accurate. This of course underlines
the inherent discrimination by employers who invite just men to
watch football but expect the female staff to stay behind. While it
seems unlikely that many, if any staff would resort to Employment
Tribunal claims over such matters, it would do very little for
harmony in the workplace, leading to discontent and accusations of
favouritism and also generate very unhelpful evidence that could be
cited in later proceedings to show a sex discriminatory
environment.
For other employment issues arising out of the Euro 2012 and
Olympic Games, click to read our first article –
Summer Sport Skivers, covering absences from work, and our
second article -
Foul play: when workers 'kick off', advising on how to
deal with disciplinary issues.
This document is provided for information purposes only and
does not constitute legal advice. Professional legal advice should
be obtained before taking or refraining from taking any action as a
result of the contents of this document.
ARTICLE
18 July 2012
Giving Prejudice The Boot
http://www.rawlisonbutler.com/Business/Employment