Most of us remember what we were doing on 24 June 2016 (the day after Brexit referendum day). James Day, a (now ex-)supervisor at a medical warehousing logistics company, will probably remember it as the catalyst which led to him parting ways with his employer after a bit of “banter” turned out not to be quite so funny after all.

The background

The Monday after the referendum, a Polish colleague of Mr Day enquired about the status of some invoices. Mr Day’s exact response was disputed, but he accepted that he made a comment (he says “off-the-cuff”) about the employee “packing [her] bags and going back home”. Probably not the wisest thing to say to an EU national in the immediate aftermath of the referendum.

The “it was just a bit of banter” defence is often the last refuge of a desperate employee, and so it proved to be for Mr Day. The disciplinary hearing manager decided to dismiss him without notice for verbal abuse or harassment of a staff member. The appeal hearing manager felt that this was a little harsh and substituted a final written warning, to remain on Mr Day’s record for a year.

At this stage, most people would probably try to put the whole embarrassing incident behind them, and be thankful to still be receiving a paycheque at the end of the month. Not so Mr Day, who promptly resigned and claimed constructive dismissal.

The claim

The claim was heard by Employment Judge Britton. EJ Britton found that there was good evidence that Mr Day had referred to Brexit, and had made a comment about the employee being a non-British national and having to leave the country. For a supervisor, this was a particularly serious error of judgement.

Applying the legal test for constructive dismissal, EJ Britton concluded that the appeal hearing manager had acted with “reasonable and proper cause” in issuing the final written warning, and the employer was therefore not in breach of Mr Day’s employment contract. Like his apparent attempt at humour, Mr Day’s claim for constructive dismissal failed.

Politics and policies

We warned at the time of the referendum campaign that the emotionally-charged debate and strong feelings on either side posed a potential headache for employers trying to keep the peace in their workplaces. Employers need to protect their employees from harassment and victimisation, whilst ensuring they do not discriminate against or victimise those expressing their political beliefs (and therefore potentially falling foul of the Equality Act 2010).

With a seemingly never-ending cycle of controversial political events and characters (think Trump, Brexit negotiations, and the unstable political scene in Westminster), it might be worth refreshing yourself on some of our top tips for communicating with employees during uncertain times.

The full judgment can be found here: Mr J Day v Alloga UK Ltd [2017] UKET 2601591/2016.