REUTERS | Jon Nazca

Should you tell your employees how to vote in the EU referendum?

This week JCB became the latest business to wade into the choppy waters of the EU referendum debate. What sets JCB’s contribution apart from many of the others, like Unilever and Wetherspoons, is that the chairman’s letter in support of leaving the EU was specifically directed at the company’s employees, rather than its customers or the electorate in general.

JCB are not alone in this. In March BMW sent an email to its UK Rolls Royce and Mini employees, supporting the Remain campaign.

Are such letters a good idea? While there is of course nothing illegal about an employer (or anyone else) expressing a view on a referendum or seeking to persuade others to vote one way or another (freedom of expression being much-prized under the Human Rights Actfor now), there may be risks associated with bringing politics into the workplace.

Much of the recent debate on EU membership has centred around the politics of immigration. A pro-Brexit employer that tries to influence its employees to vote the same way could be in danger of contributing towards an ‘intimidating, hostile, degrading, humiliating or offensive environment’ for non-British workers, which could amount to harassment because of nationality or national origins.

Regardless of which way the employer wants its employees to vote, the act of bringing the Brexit debate into the workplace would be likely to stimulate debate among the employees, which could result in some forthright views being expressed in the workplace about immigrants, for which the employer may be liable if they amount to harassment.

Some political views have been held to amount to ‘philosophical belief’ for the purposes of religion or belief discrimination. However, the scope of protection is unclear, as some of the cases show, and so it is uncertain whether a person’s political views about membership of the EU and/or British Sovereignty could be protected.  The employer will therefore have to be aware of the risk of harassment because of philosophical belief, if employees are ostracised by their colleagues because of voting preferences.

Employers should also be very careful not to give the impression (whether explicitly or implicitly) that employees’ career prospects could be harmed if they vote the ‘wrong’ way or express a contrary political view to the employer. Not only could this amount to direct discrimination or harassment based on philosophical belief, but it may also amount to a breach of trust and confidence by the employer. An employee made to feel that their political opinions have harmed their career prospects may feel they have no option but resign and claim constructive unfair dismissal.

It is worth noting that the JCB letter makes very clear to employees it is entirely up to them which way they vote, and that the most important thing is that they do vote.

Practical Law Employment Jillian Paton Mark Tarran

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