New hate crime law: stirring up complexity for employers

In its first week, Scotland’s new Hate Crime Act has prompted hundreds of column inches, demonstrations outside the Scottish Parliament, and over 7,000 filed complaints.

The Act consolidates existing hate crime legislation and creates a new offence of stirring up hatred against people based on race, colour, nationality or ethnic or national origins.

Unsurprisingly, strong views are being expressed for and against, and time will tell how the Act is applied in practice, particularly by the police.

How will the Hate Crime Act affect employers?

But what is not being discussed is the impact on employers; if recent reaction is anything to go by, the Act could well prompt an escalation of potential ‘hate’ complaints within workplace.

Until now, a heated exchange between colleagues on, say, sexual orientation or religious beliefs might have resulted in disciplinary action within the organisation for breaches of a code of conduct, for example. However, the new Act may well compel employers to further consider the behaviour of its employees in the context of criminal law. Of course, it is not for the employer to decide if the criminal law has been broken but the new legislation means there is clear potential to escalate the seriousness of the issue.

Replay the above scenario in the light of the Hate Crime Act and the aggrieved employee may report the matter to the police, or the employer may ask themselves whether they should file a complaint.

The explosion of reports filed to the police already suggests that the legislation will create more complex issues for employers.  From a practical perspective, too, this raises questions about how employers manage their internal processes while a police investigation is ongoing, or criminal prosecution pending. For example, if someone is reported to police for an alleged hate crime, is it reasonable to assume that employers may be more likely to suspend someone while the matter is being investigated?  I think the answer is probably yes given the potential seriousness.  So, employers will want to consider the impact on their business very carefully.

We are also likely to see an increase in ‘no comment’ HR interviews, where employees decline to discuss an alleged incident with their employer for fear it prejudices upcoming criminal proceedings on the same matter.

It is going to take employers a bit of time to get their head around the changes, not least dealing with the uncertainties that have arisen, particularly in terms of how the police will deal with hate crimes.

Businesses will need to review their training for staff. And reputationally too, there are risks involved if an employer is perceived as not taking adequate steps to address such issues.

Navigating the new legislation will require careful consideration, while it beds in and is tested through due process.  But there is no doubt that organisations will want to strike a balance between fostering safe and inclusive workplace environments, without infringing on freedom of expression. Where that balance best lies is yet to be tested.

If this has affected your organisation, or if you would benefit from employment law advice of any kind, get in touch with Chris McDowall or your regular Anderson Strathern contact.

A version of this article was published in The Herald: Hate Crime Act will pose new challenges for employers

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