A few weeks ago, I went to the Belgium Grand Prix. Lewis Hamilton and Sebastian Vettel had a race-long battle which, for the most part, revealed a fairly even mix of Ferrari and Mercedes fans in the crowd. Hamilton won and was cheered onto the podium. At the next Grand Prix, in Italy, Hamilton won again. This time he was booed on the podium due to the vast number of Ferrari fans at the event. And, this last weekend, at the Singapore Grand Prix, the Ferrari cars were lambasted for crashing into each other and Hamilton took another (cheered) victory.
Why am I telling you this? Well, depending on which race you went to, your status as a Ferrari or Mercedes F1 fan would get a different reception and, weirdly, this can be the same with different workplaces.
Football is the obvious starting point here. If I worked in Manchester and declared myself to be a Liverpool FC fan on the first day by walking into the office with a Liverpool FC scarf, I’d be unlikely to make friendly quickly. In comparison, I’d most likely get a warmer reception if I did so in our Canter Levin & Berg office in the city centre (albeit there is a sizeable Everton-supporting community here too!)
But, surely, even if that is the case, the title of this blog is a daft question? In this age of publicised Employment Tribunal claims and employment law protection, surely an employer can’t take the ultimate act of dismissing someone just because they support a certain football team or Formula One team?
Well, it certainly can’t be justified morally. Certainly not unless that employee was intentionally upsetting and/or bullying colleagues and going unacceptably far and above usual office ‘banter’. But the question here is a legal one: can an employer act in this way without breaching employment law?
Let’s look at an example. Let’s say that two employees, Barry and Paul (yes, the Chuckle Brothers!) join a new firm at the same time. Inbetween moving office furniture amidst their usual intermittent cries of “to me, to you”, they mention that they are die hard Rotherham United fans to their colleagues. Unfortunately, their manager, whilst happy with the quality of their furniture-shifting ability, is a diehard Barnsley fan. Due to the clubs being rivals, the manager dismisses Barry and Paul during their second week after learning of their support of Rotherham United. Can Barry and Paul do anything about this?
Well, very surprisingly, there isn’t much that they can do legally because of their short length of service. If Barry and Paul had at least two years’ of continuous employment, this would be a clear case of Unfair Dismissal; however, because they were dismissed in their second week, they don’t qualify for Unfair Dismissal protection. Unfortunately, whilst a discrimination case can be brought from day one of employment, the manager’s actions don’t appear to discriminate on any of the protected grounds of the Equality Act 2010 – these being: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; gender; or sexual orientation. (And before you ask, supporting a sports team doesn’t constitute a ‘belief’ under the Equality Act 2010.)
However, let’s be realistic here, even if Barry and Paul had no real legal claim against the firm, they would be open to spread word of the firm’s actions via social media and/or the local press. An action like this is almost guaranteed to go viral and create a PR nightmare for the manager and firm. At the very least, this consideration should avoid situations like this in real life.
Let’s briefly explore another example. Wallace and Gromit have retired from the telly and work at a local firm (we’ll gloss over the fact that Gromit is a dog here!) The firm is aptly called Cracking Cheese Gromit Limited. Wallace has worked there for 3 years and, whilst Gromit has only worked there for 6 months, he (unbeknownst to his fans) is German. Importantly, the firm is aware that Gromit is German.
Gromit is known to be a massive Bayern Munich and Ferrari fan due to being born in Munich and supporting Sebastian Vettel (German) of Ferrari. He has shown this in the workplace by decorating his desk (within office rules) with posters and pictures. Whilst Wallace is English, he also has Bayern Munich pictures on his desk because he travels with Gromit to Bayern Munich games in Germany as an occasional treat in their new invention, the cheese-powered heliplane. Unfortunately, a new Director is appointed to oversee their department, who distrusts non-Brits and who takes a dislike to Gromit due to his German roots. In a vague attempt to find a reason to dismiss him, the Director states that Gromit’s decorated desk is ‘highly unprofessional’ (despite being within office rules) and dismisses him. When Wallace states that the Director has only dismissed Gromit due to his German nationality, the Director also dismisses Wallace for the same reason.
In this case, Cracking Cheese Gromit Limited are in trouble. Wallace can bring an Unfair Dismissal claim because he has been dismissed for an unfair reason – namely, he has been dismissed despite not breaking any office rules. Gromit doesn’t have sufficient length of service to bring an Unfair Disimssal claim, but he can bring a discrimination claim based on the protected ground of nationality because the core reason for his dismissal was his German nationality (which is supported, again, by the fact that he didn’t break any office rules).
Surprisingly, Wallace also has a potential discrimination claim based on grounds of nationality, even though he is English and the Director is only ‘anti-Brit’. This would be brought on grounds of associative discrimination – i.e. that he was discriminated against due to being associated with someone discriminated on grounds of nationality. In this case, Wallace can argue that he was dismissed due to his association with a German colleague who was targeted due to his nationality.
The main moral here is that, even though Gromit didn’t qualify for Unfair Dismissal protection, he could still bring a discrimination claim because the discrimination against his sports team was centred around his nationality.
Now, in all honesty, this is a slightly daft blog because no reasonably acting manager would dismiss an employee purely based on their choice of sports team. But it does show that dismissals made for seemingly neutral reasons, even against employees with no Unfair Dismissal protection, can be held to be discriminatory if a discriminatory reason was the real reason for the dismissal.
Thankfully, I can’t see much risk of Canter Levin & Berg taking any action against me for supporting Marine AFC and Renault F1!