Antisemitism in the workplace

In a two-part series of articles, we are focusing on prevalent forms of religious and/or race discrimination. In this first piece, we look at antisemitism in the workplace; in the second piece we will be considering Islamophobia.

Despite the increasing awareness in society of the need to identify and counter racism, and efforts to educate people regarding societal treatment of the Jewish people, antisemitism remains pervasive in British society today. The Community Security Trust (CST) recorded 1,668 antisemitic incidents in the UK in 2020, the third-highest total it has ever recorded in a single calendar year. In a further damning insight, a survey from 2020 reported that, as a result of antisemitism:

• 44 per cent of British Jews do not display visible signs of their faith in public – the highest figure recorded since 2016; and
• for the third year in a row, over 1 in 4 have considered leaving the UK in the past two years.

The CST report on Campus Antisemitism in Britain 2018 – 2020, published 17 December 2020, also shows an increase in the number of antisemitic incidents in universities – despite the impact of Covid on the 2019/20 academic year – and disturbingly by university staff and academics as well as students.

Global events can have a significant impact on the incidence of antisemitism. Following the outbreak of fighting between Israel and Palestine in May this year, the Anti-Defamation League (ADL), which tracks incidents of anti-Jewish violence and bias, reported a 75 per cent increase in antisemitism reports to the agency’s 25 regional offices.

In the world of work, a TUC survey from 2017 revealed that Jewish workers experienced widespread antisemitism in their workplaces. In this article we consider terminology, treatment of antisemitism under civil and criminal law, and practical tips for employers on guarding against antisemitism in the workplace (and addressing it if incidents are reported).

Terminology of antisemitism

Broadly speaking, antisemitism can be described as hostility to, or prejudice against, Jewish people. As it stands, there is no legally binding definition of antisemitism in the UK. In 2016, the British government (along with many other countries) adopted the International Holocaust Remembrance Alliance (IHRA) working definition of antisemitism:

“Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

The IHRA gives illustrative examples of antisemitism, which include:

• the targeting of the state of Israel;
• making dehumanising, demonising or stereotypical allegations about Jews;
• denying the fact, scope, mechanisms or intentionality of the Holocaust; and
• denying Jewish people their right to self-determination.

The parameters of the IHRA definition have been the subject of controversy – the resistance within the Labour party to adopting this definition may be recalled. The source of the controversy is that the definition is seen by some to define criticisms of Israel’s policies and practices as antisemitic, thereby impinging on freedom of expression. In response, the UK Government has cited the caveat in the definition, that “the criticism of Israel similar to that levelled against any other country can’t be regarded as antisemitic”, as being sufficient to ensure that freedom of speech is preserved.

In March 2021, a group of Jewish scholars presented the Jerusalem Declaration on Antisemitism (JDA), which they suggest should replace the IHRA definition. The JDA claims that the IHRA definition is “unclear in key respects and widely open to different interpretations, it has caused confusion and generated controversy, hence weakening the fight against antisemitism”. The JDA includes a preamble, definition and a set of 15 guidelines. Although it has been welcomed by some, it has also been criticised, for example by the Antisemitism Policy Trust who refute the JDA’s criticism of the flaws in the IHRA definition.

How is antisemitism treated under discrimination law?

Employers will be aware that discrimination is prohibited under the Equality Act 2010, which aims to protect people from discrimination in the workplace and in wider society. The Equality Act lists nine “protected characteristics”, which include ‘race’ and ‘religion or belief’

Under the Equality Act, ‘Religion’ means any religion and a reference to religion includes a reference to a lack of religion. ‘Belief’ means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

It is long-established that Judaism can be both a race and religion for the purposes of discrimination legislation (see Seide v Gillette Industries; Mandla v Dowell Lee and E v JFS). Claims can therefore be brought under each of the four types of discrimination relevant to those protected characteristics:

• Direct Discrimination – where a person (A) is treated less favourably than another because of a protected characteristic.
• Indirect Discrimination – where an employer’s provision, criterion or practice applies to everyone, but it puts people with a particular protected characteristic at a disadvantage.
• Harassment – where A engages in unwanted conduct related to a protected characteristic which has the purpose and effect of either violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
• Victimisation – where A subjects B to a detriment because B has done a protected act or A believes that B has done or may do a protected act.

Relevant criminal law

In serious cases, antisemitic behaviour in the workplace might breach criminal law. Although there is no specific “crime” or “offense” of antisemitism, there is legislation in place in the UK to protect people from racial or religious hatred.

The Racial and Religious Hatred Act 2006 makes it an offence for someone to intentionally stir up hatred against an individual on the grounds of religious or racial background by using threatening words or behaviour or displaying threatening written material. Racial hatred is defined as hatred against a group of persons defined by reference to colour, race, nationality or ethnic or national origins.

Clearly, depending on the facts of the case, antisemitic behaviour could involve other criminal offences (eg assault) in very serious cases.

Tips for employers on guarding against antisemitism

• Equal opportunities / bullying and harassment training – In the context of discrimination, employers can be held vicariously liable for discrimination or harassment committed by an employee, unless they can show that they took all reasonable steps to prevent an employee from carrying out the discriminatory act. Employers should therefore be providing an ongoing programme of equal opportunities (including unconscious bias) training, to avoid it going stale in employees’ minds. See our previous blog on this issue. Training should equip staff to safely challenge unacceptable behaviour.
• Religious holidays – a number of indirect discrimination cases have concerned religious days of rest or holidays, for example Fugler v MacMillan-London Hairstudios Ltd, where an employee’s claim succeeded after her request for a day’s holiday on Yom Kippur was refused by her employer, and was found not to be objectively justified. The Equality and Human Rights Commission Code of Practice states that employers should seek to accommodate an employee’s request for annual leave for a religious occasion, provided that they have sufficient holiday entitlement and it is reasonable for them to be absent from work during the period requested.
• Dress code – many employers will be aware that dress codes cannot interfere with an employee’s right to manifest their belief, unless it can be objectively justified.
• Policies – ensure your policies on equal opportunities, bullying and harassment and whistleblowing are up to date. It’s also worth checking your policies to ensure consistency between them, i.e. to ensure that the code of conduct doesn’t undermine the bullying and harassment policy.
• Online conduct / conduct outside of work – In certain circumstances, it may be possible to discipline online conduct or conduct outside of work, for example where there is a clear link between the conduct/employee and the employer, where the conduct impacts on other employees or where the employer’s reputation is harmed as a result of the conduct. It is therefore worth checking that your policies and codes of conduct allow for disciplinary sanctions following online conduct and conduct outside of work. Introducing a clear policy on social media use can also ensure that employers can restrain unacceptable behaviour online.
• Managing allegations – Acknowledge that antisemitism takes many forms, including overt verbal slurs, tropes and conspiracy theories. Employers should ensure that their channels in place for reporting incidents are effective. Ensure that when allegations are raised, no matter how “low level” they seem eg jokes/banter, they are addressed promptly, proportionately and fairly. Fair processes are key, as is avoiding knee jerk reactions, which can cause issues if litigation arises further down the line.

With special thanks to Rebecca Tuck QC, a barrister at Old Square Chambers, for co-authoring this article. Special thanks also to Siobhan Murray and Annisa Khan, paralegals at Farrer & Co, for their assistance.

If you require further information about anything covered in this briefing, please contact Katie Fudakowski, Tabitha Juster or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, July 2021