Freedom of Speech – A minefield for employers

You may have seen that David Miller has been successful in establishing that his anti-Zionist beliefs qualify as a philosophical belief and are therefore protected under Section 10 of the Equality Act 2010. This is the latest in a series of cases, such as the Maya Forstater case and the Alison Bailey case showing that the law will potentially protect the right to hold beliefs that are perhaps less fashionable or out of step with others, just as much as it protects more mainstream views.

We’ve known since the Grainger case some years ago that for a belief to be protected, it has to be something that is worthy of respect in a democratic society but essentially the Courts are taking a really wide view of that and it seems that only the most extreme beliefs would be excluded: Naziism is the example that is always given.

This leaves us in a position where if you state your beliefs, for example, in meetings, in the workplace, on social media and others are offended, and the employer wades in on the “side” of others, they risk committing direct discrimination against the person holding that belief. Examples in recent years have included the Page case where they were talking about same sex marriage, Forstater where it involved views on biological sex being immutable (unable to change) and in the David Miller case, the belief that Zionism is problematic for a number of reasons. Therefore, if your belief system is racist or homophobic or anti-islamist, this protects your right to hold that belief and express it. Essentially, the law protects the individual’s right to express their opinions and articulate their beliefs provided that the individual is manifesting their beliefs in a way that is not objectionable, they will be protected by the law of direct discrimination. In contrast to those who step over a line and express their beliefs in an objectionable manner.

This leaves employers having to regulate between groups of staff with opposing views. Up until now, employers have taken a “dampening” approach asking colleagues whose views might cause friction with others to perhaps be quiet about it. The “ we respect your views and you are entitled to have them but given it is causing an issue please can you not go on about it” approach.

That is problematic – the law has imported from European Law and Human Rights Law the concept of proportionality – an employer having a quiet word with colleagues asking them to be mindful perhaps of policies as others have contrary views is going to be proportionate. Wading in and disciplining or excluding a member of staff from certain activities is likely to fall into the disproportionate category.

The traditional approach of having a ‘zero tolerance’ approach in Equality and Diversity Policies to any kind of bullying or harassment gets unstuck; it doesn’t work when we are juggling different beliefs and can lead the employer into direct discrimination territory when penalising someone who has caused offence.

It is still legitimate for a company to set out what its values are and expect staff to behave in a manner which fits in those values. However if the employee is doing their job but causing offence to others when they express their beliefs, real caution needs to be taken.

I recommend that you make it clear in any policies that you do have that in the workplace you may have to listen to views that you find offensive, and others are entitled to express their beliefs, even where those beliefs clash with yours, to make it clear that the employer is having to moderate and balance a range of opinions.

Where an issue emerges, seek advice before taking any steps you might want to and try the test of ‘if this person was expressing a view about [slavery/children being sent down mines being a negative thing] – insert a benign belief here, would we be taking this step’? That is likely to take the emotional heat out of it.

If the employee’s conduct is becoming problematic, can we strip out what the conduct is that is an issue and separate it from the belief? eg:- they are expressing their views to customers and upsetting them, we’ve had complaints.

Refreshing Law
February 22 2024