Last reviewed 21 September 2017

Hate crime is on the increase and all too often reports of incidents spike following emotive events such as the EU Referendum or a terrorist attack. Laura King takes a look at what action can be taken when emotions are running high to stop offensive race-related banter on construction sites.

Provisional figures from the Home Office reported that the recorded number of racially or religiously aggravated offences rose by 41% in the month following the Brexit vote. More recent figures show that in 10 police forces, reports of hate crime rose by over 50% in the two months following the Referendum, and in one force — Dorset — figures doubled.

Although criminal offences of hate crime should not be commonplace on construction sites, hate incidents in the form of inappropriate banter, jokes or comments could well be. Within the industry, banter is often a fundamental part of the job; indeed it can make a hard job more enjoyable. However, employers need to be alert to the risk that a joke to one could constitute harassment to another — and under the Equalities Act 2010, employees can bring claims of unlawful harassment against their employer if a comment has offended. This includes comments that have been overheard; potentially a significant problem in open workplaces such as a construction site.

Around 11% of employees in the construction sector are non-UK nationals (rising to up to 50% in London). Of these 11%, 9% are from Europe. With immigration forming a large part of the pre-Brexit debate and taking centre stage in ongoing negotiations, it is not hard to conceive that tensions around immigration are likely to rumble on — and with it the risks of racially-orientated banter getting out of hand.

What is the law?

Unlawful harassment under the Equalities Act includes any unwanted behaviour that offends, humiliates or degrades someone’s dignity, or behaviour that creates a hostile working environment. It can be in almost any form, including banter, practical jokes, teasing, or gossip that is overheard or that gets back to someone.

To define what personal traits are covered, the Act outlines several “protected characteristics”. These include race, religion or belief. If an employee is made to feel uncomfortable because of one of these characteristics, this could constitute unlawful harassment. Some examples of race-related comments that might offend include asking when someone is “going back home”, or saying that they “won’t be able to work here soon”.

Employers have a duty to protect their employees from harassment. They also need to be able to show that they took all reasonable steps to stop the offending behaviour. This includes taking action to stop any harassment from third parties or customers if an employee has made a complaint.

If an employee does not feel as though harassment is improving, they can make a claim in an employment tribunal against both their employer and colleagues.

Four important things to remember:

  1. The definition of employee is broader under the Equalities Act. It includes those who are directly employed as well as agency workers with a contract to perform services, and some self-employed people.

  2. The effect of harassment is considered from the claimant’s point of view and the claim is based on how they feel about the unwanted behaviour. If one person’s joke offends, it is only the opinion of the person offended that matters.

  3. Do not assume that people have the strength of character to “take” banter. If they later bring a claim, and win, case law indicates that they will be awarded compensation for the full time over which they have endured the harassment.

  4. A claim can also be made due to association or perception. For example, if someone is asked about the status of European relatives in a way they find offensive, or if someone is harassed because they are perceived to be from Europe when they are in actual fact British, then this still counts under the Act.

Four steps to managing banter and protecting your business

  1. Do not ignore it — take action and take action quickly

    Banning talk about Brexit is difficult to police — and in itself could cause problems. Instead, site supervisors should take a proactive approach to managing banter on site. Part of this will be to stay alert to any potentially offensive behaviour and to nip it in the bud. Tensions can quickly escalate, but by acting swiftly and decisively, site supervisors can help set the right standard and stop any potentially offensive conversations or comments from re-occurring.

    Tackling the subject head-on will also help workers feel supported and included, and should help improve respect and working relationships on site.

  2. Make sure the business has a clear and thorough policy

    If an employee wishes to make a complaint, then it is important that:

    1. this is taken seriously

    2. there is a clear policy in place to tackle the issue.

    What happens following a complaint will be taken on a case-by-case basis. It should be based on what is reasonable and what the person raising the grievance would like to see.

    Mediation or informal intervention might be appropriate. Other cases might require the grievance to be investigated, or it might be appropriate to go through disciplinary action. For example, in extreme cases, some sites will operate a zero-tolerance policy whereby any instances of threatening or violent behaviour will result in the worker being removed from site pending an investigation.

    In all circumstances, the organisation will need robust policies and procedures so that employees have a clear expectation of what will happen. This will also help ensure that the business has a written record of any claims relating to harassment and can demonstrate how they were dealt with. This will be important if the complaint is taken to an employment tribunal.

  3. Have clear boundaries and communicate policies to staff

    As well as having up-to-date policies, employees also need to know what is acceptable. They need to understand what behaviour should be reported, the consequences of any claim regarding harassment, and what is expected of them as a worker on site.

    Within the construction industry, most of this communication will happen through the toolbox talk. However, it could also be communicated using signs or posters in communal areas around the site. In light of Brexit, it might be necessary to highlight the fact that racial harassment can be against any race or nationality — including people from Europe.

  4. Support your site supervisors

    Managers and supervisors can have a big impact on how a site functions. Because of this, it is really important that supervisors know themselves what is appropriate and are trained to be able to deal with any potential issues. This might include diversity training, or training in how to have difficult conversations.

    Supervisors should also be kept in the loop with any updates regarding Brexit. There still remains a lot of uncertainty, but by knowing what is happening within the organisation, supervisors can respond appropriately to concerns and support those working for them.