Referring to someone from Eastern Europe as “Borat” amounts to direct race discrimination, according to a recent Tribunal judgement. The Plaintiff in the case made a number of allegations against his employer and, in spite of the Tribunal rejecting a number of the claims, which they described as “less than persuasive and less than honest”, the employer, an engineering company in Yorkshire, was found guilty of discrimination, both on the grounds of race and sexual orientation (it appears that the employee in question was gay, and was referred to as a “wanker”, inter alia).
There have been a number of similar cases in the past, and one of the problems for employers is how to police the behaviour of their employees in such circumstances. The Plaintiff in this case is a welder and was, presumably, working in a fairly “laddish” atmosphere where there may be a long history of this kind of behaviour, and where stereotypical assumptions about race and nationality may be commonplace. In an atmosphere such as this, many people are genuinely bemused that what they regard as harmless banter may be interpreted as discrimination by a Tribunal. However, the laws on discrimination do not just apply to people from different ethnic groups, but to people of different nationalities as well and – however much commentators may moan about “political correctness gone mad” – scenarios like this will continue to arise with, one assumes, a similar outcome. What may seem like a harmless joke to one individual may feel like intolerable abuse to another. It’s all a question of perspective, really.
Employers need to protect themselves by demonstrating that they have solid, workable policies in place to encourage workplace diversity, and prevent their employees from behaving in such a way as to allow the development of a degrading and humiliating working environment. However, it is not enough to write an equal opportunity policy and get your Chairman to sign it – the policy must be backed up by regular communication with your workforce, training, timely and appropriate action to tackle complaints, and other mechanisms to ensure that, if a maverick employee engages in discriminatory behaviour, you will be able to demonstrate that, as a company, you don’t tolerate it. Otherwise, you are likely to end up on the losing side of a courtroom battle.
I am a stern critic of unnecessary red tape and regulation in business, but in situations like this I believe that employers should take steps to protect themselves from the law, and their employees from discrimination. Apart from the legal risks that they expose themselves to, what company really wants to develop a reputation as an employer of bigots and bullies?