EMPLOYMENT

Reflections on a Hot Topic: Freedom of Expression in the Workplace

Employment lawyers are increasingly called upon to grapple with the legal and political complexities of freedom of expression in the workplace.

The right of employees to express concerns in the public interest is familiar to employment lawyers but, in light of the Lucy Letby case and others, there is concern about whether the current law and practice is fit for purpose. Moreover, there have been wider developments in the area of freedom of expression. Particular controversy surrounds the extent to which workers and visitors to the workplace have a right to express unpopular, offensive or controversial views and the extent to which such a right may be limited. Such issues can bring into play wider principles of human rights law that might be less familiar to employment lawyers.

For example, there has been a spate of recent cases concerning expression of views surrounding the issue of gender identity. There have also been cases which consider the wider issue of when particular expressions of view are considered so abhorrent as to fall outside of protection and how to balance one individual’s right to express their views with the competing rights of others.

The vexed question of where to draw the line and how to balance competing rights continues to attract legislation and reform. The student practice of “no platforming”, dating back to the anti-racism protests of the 1970s, has given rise to a new law in the higher education (HE) sector, which provides specific protection for freedom of expression. Looking ahead, further litigation and legislative changes remain firmly on the horizon in this area.

A Fundamental Right  

Freedom of expression (ie, the right to “hold opinions and to receive and impart information and ideas without [unjustified] interference”) is a fundamental right, protected by Article 10 of the European Convention on Human Rights (ECHR). The ability to express views that are unpopular is an integral part of freedom of expression and the protection of unpopular views lies at the heart of its protection. If only popular or majority views were protected, there would be no true debate or democracy. However, freedom often comes with limitations such as the limitations set out in Article 10(2) of the ECHR, which include the protection of the rights of others.

The right to freedom of expression often overlaps with other rights. Cases which engage freedom of expression often also engage Article 8 rights to home and private life and Article 9 rights to freedom of thought, conscience and religion. Controversial, critical or hostile views on matters such as homosexuality or gender identity are not necessarily based in religion and/or other genuine deep-seated beliefs, but often they are. It is the cases where these principles are also engaged which are the most difficult for courts and tribunals to determine.

Limits on Freedom of Expression in the Workplace  

The world of employment has particular features which can magnify these sorts of difficulties.

On the one hand, workplaces bring together diverse people who might not otherwise choose to associate with each other. They typically require team working and the development of effective and enduring relationships. Employers owe duties of care to all workers, not to mention numerous other legal obligations, including those under the Equality Act 2010 (EqA). The internal dynamics of the workplace may create a particularly potent environment in which the expression of controversial views, but also the suppression of such views, might become problematic.

On the other hand, most employers will also have a concern for their external-facing reputation. The prolific rise in the use of social media means that what employees do and say, both inside and outside of the workplace, has a potentially wide audience and therefore a potentially significant impact on their employers’ reputation, which in turn can impact on the profitability or success of their employers’ business. It has also meant that what employees do and say outside of the workplace is far more likely to be known by an employer. Tribunals have struggled to draw a consistent line in cases of misconduct but have accepted, as a general principle, that even where comments are made outside of working hours and outside of the workplace, employers may act to discipline employees in circumstances where those comments are unacceptable.

The difficulty, often, lies in working out what is and is not unacceptable. At the time of writing, renewed war in Israel and the Gaza Strip has reignited long-standing controversy over when criticism of Israel might be anti-Semitic and on the impact of political issues on freedom of expression. This can affect even those whose job is to be provocative: it has been reported that the Guardian newspaper sacked its political cartoonist over an image which was thought to be anti-Semitic. One recent example of the complexity in this area can be seen in LB of Hammersmith v Keable, concerning dismissal of a claimant who made anti-Zionist comments at a rally outside of Parliament, which were videoed and published. The Council took the view that the claimant’s comments were insensitive, likely to be considered offensive and likely to bring the Council into disrepute. The tribunal determined that his dismissal was well outside the range of reasonable responses and ordered that he be reinstated. The employer’s appeal was unsuccessful. An older tribunal judgment in Fraser v UCU provides a useful analysis of the scope for trade unions to take active positions in relation to the conflict, which might be valuable when considering other controversial issues which have the potential to have an impact on those with protected characteristics and, therefore, give rise to issues under the EqA.

A number of the recent freedom of expression cases within the employment sphere relate to the issue of gender identity and/or gender critical beliefs. This is a relatively recent area of debate where both sides hold strong beliefs that their view is correct. In Forstater v CGD Europe and others, the Employment Appeal Tribunal (EAT) overturned a tribunal decision and held that Ms Forstater’s belief that biological sex was immutable was protected under the EqA. On remission back to the tribunal for trial this year, a majority of the tribunal held that a tweet sent by Ms Forstater in which she described a person who identified as gender-fluid as a “part-time cross dresser” was not enough to take her outside the protection afforded by Article 9 or the EqA, and awarded her damages of GBP100,000.

The recent EAT case of Higgs v Farmor’s School has brought some welcome clarity to the practical approach that tribunals should take to assessing the proportionality of any interference with the right to manifest a religious or philosophical belief, with a helpful list of factors to take into account such as content, tone, extent of manifestation, worker’s understanding of the likely audience, the extent and nature of the intrusion on the rights of others and the potential power imbalance given the nature of the worker’s position or role and that of those whose rights are intruded upon. The first factor – “the content of the manifestation” – prompts a question: at what point does the view being manifested become so abhorrent that it does not deserve protection at all within a democratic society? The difficulty with this question is that views as to what falls within the scope of that exception are likely to change as society changes. It may therefore be unsafe to rely on historic analyses of what does or does not fall within the scope of this exception.

Legislation and Reform 

The Higher Education (Freedom of Speech) Act 2023 introduced a range of new and augmented free speech duties for HE institutions in England. The primary duty under the Act is for the governing body of such institutions to take reasonably practicable steps to secure freedom of speech within the law for, among others, its staff and members. The duty can be enforced as a statutory tort with the prospect of claims for breach of this duty being pursued in the civil courts. However, the duty is also likely to have an impact in employment disputes. It remains to be seen whether such a duty will ever be introduced more broadly or in other sectors.

Other significant developments may be on the horizon. The possibility of a UK withdrawal from the ECHR has again reared its head: what impact might that have on freedom of expression in the workplace? Further, the Labour Party has made promises to boost protections for whistleblowers, in the wake of serious failings uncovered by the trial of Lucy Letby, with the appointment of a “whistleblowing tsar”. What precise form such new protections might take is presently unclear, but what is clear is that this issue, and freedom of expression at work more generally, will continue to be of importance to employers and employees, keeping practitioners busy with advisory work and advocacy on tricky and sensitive issues.