UK: Giving Prejudice The Boot

Last Updated: 18 July 2012
Article by Peter Jones

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 Ł2 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.

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