Several years on from the EU referendum in 2016, and the political chaos caused by the result does not look like it will be resolved anytime soon. It is clear that the question of whether or not the UK should leave the EU and on what terms has exposed (or created) deep divisions within our society. Brexit has upset not just the political order but has caused conflict between colleagues too, with some believing that they have experienced discrimination in the workplace in the form of ‘Brexism’.

How Brexit spilled into the workplace

While the highly emotive subject of Brexit is probably best left unmentioned in the workplace, it can be hard to avoid given the 24-hour news cycle obsession with every twist and turn of the saga. In addition, companies and organisations now legitimately need to plan for the possible implications of a no deal scenario so the subject can’t always be ignored at work.

Does the law protect against Brexit discrimination?

Employees may feel insulted or intimidated by colleagues who express strong views (one way or another) about Brexit in the workplace but may fear for their promotion prospects or even jobs should they challenge such opinions. What protection does the law offer against ‘brexism’?

Protection against discrimination

It goes without saying that any workplace harassment based on someone’s nationality, race or colour would be unlawful racial discrimination under the Equality Act 2010 (the Act). But what about a strongly held political opinion for example, that Britain is better off as part of the EU?

There is no legal protection in England for political opinions at work. However, under the Act both religious and political beliefs are protected against discrimination; the answer will depend upon whether a Brexit belief can be brought within the definition of philosophical belief.

What amounts to a philosophical belief?

In the Employment Appeal Tribunal (EAT) case of Grainger v Nicholson in 2010, it was held that in order to qualify the belief must:

• Be genuinely held
• Be a belief rather than an opinion or viewpoint based on the present state of information available
• Be a belief as to a weighty and substantial aspect of human life and behaviour
• Attain a certain level of cogency, seriousness, cohesion and importance
• Be worthy of respect in a democratic society – not incompatible with human dignity and not conflict with the fundamental rights of others

In this instance, the defendant maintained that he was selected first by his employer for redundancy due to his belief in climate change.

The tribunal held that this conviction was a protected belief, meaning that Nicholson’s redundancy was a result of discrimination.

The EAT have also held that a belief does not have to be one that affects all or many aspects of a person’s life. A belief in a single issue, which affects just a single but important aspect of a person’s life, could qualify for protection.

Based on this definition, pacifism, atheism and vegetarianism would be regarded as a philosophical belief but allegiance to a football team would not.

In the Grainger case, the EAT stated that although support of a political party might not amount to a philosophical belief, a political doctrine or philosophy such as Marxism, Communism or free-market capitalism could be.

GMB Union v Henderson

In the subsequent case of the GMB Union v Henderson, a union employee claimed that he had been discriminated against and harassed on the basis of his “left-wing democratic socialist beliefs”. An employment tribunal decided that Mr Henderson’s beliefs qualified as a philosophical belief and he was therefore protected from discrimination on the basis of such beliefs. Although the matter subsequently went to the EAT, this aspect of the decision was not challenged.

However, it should be noted that membership of a political party alone is unlikely to be enough to attract the protection of the Equality Act 2010; a more deep seated belief will need to be demonstrated.

Discrimination based on a political opinion

In early 2019, the Ministry of Defence lost an appeal against a Scottish employment tribunal’s ruling that belief in Scottish independence could amount to a protected philosophical belief.

In a preliminary hearing in McEleny v Ministry of Defence, the tribunal found that such a belief was sufficiently cogent and important to be protected as national sovereignty and self-determination were ‘weighty and substantial aspects of human life’ and amounted to more than just a political opinion.

Whilst an employee’s belief in (or against) Brexit may appear to be on fours with this case, employment tribunals are not bound by decisions of other employment tribunals and each scenario would turn on its own facts. In the McEleny case, the claimant had had a strong belief in Scottish independence from a young age.

Conclusion on Brexit discrimination in the workplace

In the right circumstances, an employment tribunal may find that a Brexit belief was a belief capable of protection from discrimination in the workplace.

However, that is just the first hurdle for any claimant; they would need to go on to show that they were discriminated against because of their belief. The evidence is often not there to show a direct link between the treatment received and the protected characteristic.

We will have to wait and see whether any such cases eventually reach the tribunals. However, given the unique, on-going and contentious nature of Brexit, the best policy for employers to adopt may be to remind their workforce to be tolerant of each other (and accept that people can hold opposing views while still respecting each other). It’s wise to follow the old adage of never discussing religion, politics or money at work.