Last week, my Polish builder got told to “F*** off back to your country” in a builder’s merchant in Brighton. This had never happened to him in 13 years. Brexit has sadly led to a notable rise in the reporting of hate crime. We hope these are isolated incidents and will diminish over time. However, if customers or employees stray into such behaviour, it is worth pausing to consider the exposure to businesses and what can be done to protect them against financial and reputational liability.
The Equality Act 2010 draws a very simple red line: racist or xenophobic comments such as “go back to your country” are unlawful. They amount to harassment, namely unwanted conduct related to race / nationality / colour / origins which has the purpose or effect of violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Importantly, it does not matter whether the intention is not to offend. Neither does it matter whether the conduct is aimed at you or another. A British co-worker would equally be entitled to bring a claim for finding it offensive. It is also irrelevant whether the victim is in fact not an immigrant and the offender is mistaken in their belief.
Here are some examples from the past of comments which the Employment Tribunal found discriminatory: Gramps, Yoda (agist), Borat (racist), Ironside (discriminatory against a wheelchair user). There is no doubt that the types of comments we have seen since Brexit, such as “no more Polish vermin”, would be found to amount to discrimination.
The Act protects customers and employees from such conduct. This applies to all employers and to anyone who provides a service, goods or facilities to members of the public (whether for payment or not). As businesses are responsible for the acts of their employees and agents, they will be the ones being sued, dealing with the reputational impact and meeting the financial liability. Businesses may also be liable for the actions of customers in their shops (like in the case of my builder). This area of the law has changed since 2013 (for a time there was a clear liability on businesses for the actions of third parties but this has been repealed) and is currently somewhat unclear; however, current events may provide fertile grounds for new case law. An offended customer, or employee, may be able to sue a business for being subjected to offensive comments, in particular if it is clear that the business has a policy of not responding to such behaviour.
This is an opportune moment for all businesses to remind their staff (and possibly their customers) that respect and tolerance are the expected behaviours and that racist or xenophobic comments will not be tolerated. Taking such action, for example issuing clear policy statements to all staff and customers, may enable businesses to defend claims against them. Perhaps more importantly, it will help to ensure we continue to promote values of diversity and tolerance in the UK.
The considerate constructor scheme has been an incredibly positive initiative in changing the image of construction. Broadening the initiative to ensure the building industry remains considerate and respectful of diversity would be in everyone’s interest.