Equality, Diversity, and Inclusion – Unknown Dimensions

How does the new Hate Crime and Public Order (Scotland) Act 2021 affect the management of employees in the workplace?

Having come into force on 1 April 2024, the new Act aims to enhance existing protections around stirring up racial hatred and extend this protection to the characteristics of disability, religion, sexual orientation, age, and transgender identity. It criminalises “threatening or abusive behaviour which is intended to stir up hatred or prejudice.” Since being enacted there has been a steady stream of reports to police regarding issues which, in an employment context, could impact on managing employees.

Why is this important for employers in the context of Equality, Diversity, and Inclusion?

Imagine the following:

Simon and Peter, both financial advisers, within their professional and regulated workplace, enter a heated argument concerning a proposed change to the disability friendly policies being introduced by the firm. Both are subject to professional obligations concerning their conduct but nonetheless their personal beliefs boil over in the workplace resulting in a clash, and fostering a poor work environment. Dominic, a visitor at the time, and not part of the conversation takes exception to what has been said and makes a formal complaint to the employer and to the police.  Being a disabled person himself, he feels strongly that he has been subjected to a hate crime.

How does the employer manage the situation and what new considerations have to be made?

Historically, an employer would rely on their conduct policies or employee handbook, most of which would set out that any act of discrimination would likely amount to misconduct. However in light of the criminalisation of “hate” acts (and its new extended definition), an employer might be well advised to consider in the context of the criminal law, the seriousness of what has been alleged, and apply this to how they manage an internal process, including handling the complaint from Dominic, and any disciplinary process.

It is not for an Employer to determine criminal guilt, of course, but the criminal context is nonetheless a consideration in the context of managing any situation.

In considering this hypothetical scenario an employer might consider:

• Should the individual(s) be suspended pending investigation?
• What are the pay arrangements during any suspension?
• Can the employer interview the employee(s) as part of its investigation, if they know there is a simultaneous investigation being conducted by the Police?
• If there is a police process, and an internal process, running simultaneously, is there a higher risk of the employee not engaging with the internal process given the risk of prejudicing any criminal matter?
• If there is a Police process, and if the employer suspends, what impact will that have on workplace resourcing given the well-known delay in criminal investigations?
• As there is an obligation to keep any period of suspension under review, and for as short a period as practicable (per ACAS guidance), how does that interact with criminal investigations and prosecutions which can be very lengthy?
• What regulatory reports might be needed e.g. if there a requirement to be a fit and proper person in the financial services industry, what reporting is needed and when?
• If a decision is made to dismiss, what risk is there if the subsequent police investigation finds no criminal wrongdoing?
• If an employee is dismissed, then files a complaint at an employment tribunal, what cost and delay implications are there if there is a criminal prosecution outstanding (tribunal proceedings will usually be frozen pending any related criminal proceedings)?

The new Scottish legislation is largely untested. Compounded with that are the considerations for organisations that operate nationally in Scotland, England, and Wales, where different rules will apply. And how much weight will be given to freedom of expression have to say in the context of this new law?

Fortunately, there are steps employers can readily take to manage the potential risks.

What can an employer do?

ACAS – The ACAS website has a separate advice column for hate crime at work.

Equality Diversity and Inclusion training – Regular training of staff, at a minimum annually, will help any organisation or business stay at the forefront of legal developments but also allow a safe space for discussion and dialogue that can be structured to individual organisational need. It can also assist managers in managing highly sensitive matters.

Update employee handbook – Employers may want to review their employee handbook and address with specificity what will happen in circumstances where an alleged hate crime has been reported to the Police. This will require specialist drafting, with which we can assist.

Take legal advice – Having the assistance of a dynamic and responsible full service legal team with the expertise of both employment and regulatory matters will ensure that your organisation fully meets their obligations whilst retaining their highly skilled workforce.

If you or your business is affected and you feel you could benefit from a confidential discussion, please contact a member of our Specialist Employment Law Team.

This update contains general information only and should not be construed as providing legal or other professional advice.