Member firms of Ius Laboris, advise on actions employers in the UK, Germany, Denmark, Greece, France, Italy and Spain should take against racism in the workplace
Many UK employers are issuing statements on their own response to the Black Lives Matter movement. Employers are encouraged to thoroughly investigate any allegations employees raise regarding discriminatory behaviour. In some cases, employees’ behaviour outside of work or on social media can be a fair reason for disciplinary action and even dismissal.
Employers to are encouraged to review their policies, including those on equal opportunities, social media and disciplinary processes. A robust anti-discrimination policy is a must-have.
The UK government is also considering introducing mandatory ethnicity pay gap reporting, which may require employers to publish pay data about their employees by race and an ‘action plan’.
While there are no riots in Germany about George Floyd’s dramatic death, it is worth pointing out that there have recently been countrywide demonstrations with more than 15,000 participants in Berlin alone to protest against racism. Companies’ should consider reviewing their anti-discrimination policies on a regular basis and training staff, which is also legally required under German law. The idea of appointing a Diversity Officer is also something to consider.
In the past few years, employers in Denmark have increasingly had focus on reducing the risk of being associated with employees’ offensive behaviour or statements outside the workplace, for example on social media. Generally, private-sector employers are relatively free to implement policies that define what kind of off-duty conduct will be deemed contrary to the employer’s business interests. And at the moment, we are seeing an increasing number of employees being disciplined or dismissed for engaging in legal off-duty activities that are considered to conflict with the employer’s business interests (e.g. activities considered to be discriminatory/offensive in regard to a specific group of people). Such a dismissal will only be considered unfair if the employer’s policy is unclear, if the behaviour in question is considered below the threshold of what could potentially harm the employer’s business, or if the conduct in question has not been sanctioned consistently by the employer. It is also important to note that a disciplinary action or dismissal may be discriminatory if the employer chooses to sanction behaviour relating to a protected criterion such as religion or political opinion. From a legal perspective, sanctioning public sector employees for (legal) off-duty conduct is more complex in Denmark given ‘public sector employees’ statutory freedom of speech’.
Under Greek legislation, any discrimination on the grounds of race, colour, national or ethnic origin and genetic origin among others regarding the terms of access to work (including selection criteria, terms of service and professional development and the terms and conditions of employment) is prohibited. Usually, employers have specific policies or codes of ethics or internal regulations that provide guidelines for employers when having to deal with an employee’s discriminatory conduct. Some also include a provision that employees should, in all circumstances, behave in a manner that will not damage the company’s public image or values in the terms of employment. For public servants, such behaviour, even outside the workplace, is a disciplinary offence, as it is also in certain professions.
The French Labour Code prohibits all forms of discrimination in labour relations (Article L. 1132-1). No employee may be excluded from a recruitment procedure, sanctioned, dismissed or be the subject of a discriminatory measure (in particular with regard to remuneration, promotion, transfer, etc.) based on his or her origin, membership or non-membership of an ethnic group, nation or alleged race, physical appearance, surname or place of residence.
In civil matters, any discriminatory measure may be ruled void by a judge. In addition, discriminatory acts attract severe criminal penalties (three years’ imprisonment and a fine of EUR 45,000).
The Italian Constitution recognises full and equal rights for all citizens regardless of any ethnical or racial difference. Since the Workers’ Statute of 1970, it has been the law that any act based on discrimination in the workplace (i.e. disciplinary actions, transfers, reallocation of workers, etc.) should be considered null and void. Furthermore, a discriminatory dismissal is null and void and the employee concerned is entitled to full reinstatement and indemnity for damages. Implementation of EU directives on discrimination law has widened the possibility of access to the courts, including collective action by organisations.
Racial discrimination is specifically referred to in article 14 of the Spanish Constitution as well as in the Workers´ Statute and Equality Organic Law 3/2007. The wave of protests against recent acts of racism should encourage employers to adopt actions to review their stance, specifically by means of the organisation’s anti-discrimination/harassment policy, the code of conduct or the social media policy, among others.
In addition, a written statement released by an organisation may provide a definitive endorsement of the official stand reminding that any discriminatory comment by employees, whether during working time or otherwise, is strictly forbidden and will be subject to disciplinary action.
Contributing authors include Anna Bond of UK law firm, Lewis Silkin, Jessica Jacobi of German law firm, KLIEMT.HR, Yvonne Frederiksen of Danish law firm, Norrbom Vinding, Evaggelia Patsialou, Korina Paschaliori and Fani Batsila of Greek law firm, Kremalis, Arnaud Teissier of French law firm, Capstan Avocats, Lea Rossi of Italian law firm, Toffoletto de Luca Tamajo e Soci, José Miguel Mestre Vázquez of Spanish law firm, Sagardoy Abogados.