The recent Employment Appeal Tribunal (EAT) case of Forstater v CGD Europe & others was a stark reminder of the difficulties employers face when it comes to balancing the rights of their employees to express their views freely without fear of punishment against the rights of those who may be offended by such views. An employer that fails to get the balance right exposes itself to claims for unfair dismissal, direct discrimination and harassment.
In today’s world where social media, woke and ‘cancel’ culture dominate both social and professional landscapes, balancing an employee’s right to freedom of expression while giving due consideration to the rights and interests of other employees is going to become an increasing challenge for employers.
The Forstater case
In this case, Ms Forstater was engaged by a not-for-profit think tank as a paid consultant. During her engagement, she tweeted about the government’s consultation on the reform of the Gender Recognition Act.
In one of these tweets she commented that a “man’s internal feeling that he is a woman has no basis in material reality”. The tweets led to several internal complaints being made and ultimately to her appointment not being renewed. Her tweets were viewed by colleagues to be problematic and exclusionary.
Among other complaints, Forstater brought a complaint of direct religion and belief discrimination in the employment tribunal. The ‘belief’ that she relied on in bringing her claim was that ‘sex’ is a material reality which should not be conflated with ‘gender’ or ‘gender identity’.
One of five criteria that tribunals use to determine whether a belief constitutes a ‘philosophical belief’ capable of protection under the Equality Act 2010 is to consider whether the belief is “worthy of respect in a democratic society and not incompatible with basic standards of human dignity”. While the original tribunal that heard the case found that Forstater’s belief did not pass this test and was therefore not protected under the Equality Act, the EAT disagreed.
The right under Article 10 European Convention on Human Rights (ECHR) to freedom of expression is qualified by the operation of Article 17 ECHR, which provides that nothing in the convention confers the “right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms” set out in the ECHR.
The EAT concluded that only beliefs “aimed at the destruction” of convention rights can be classified as not “worthy of respect in a democratic society” and “incompatible with the basic standards of human dignity”. Forstater’s belief was therefore capable of protection under the Equality Act 2010 as it did not contravene the Article 17 ECHR standard.
This case is a reminder that freedom of expression is applicable not only to information or ideas that are favourably received or regarded as inoffensive, but also to those that offend, shock or disturb.
The importance of freedom of speech in the modern workplace
Work life is usually significant to an individual, both in terms of time and in its importance to a person’s sense of identity. An individual’s colleagues are likely to make up a large proportion of those with whom they interact and a person’s right to express themselves in the workplace is therefore important to both their self-development and their sense of autonomy.
Open workplace discussions about political and social matters are important as they will undoubtedly provide greater exposure to diverse ideas than more formal methods of receiving information such as the media. However, employers must also bear in mind that the concepts of “correctness” and “professionalism” as well as good working relationships among staff are integral to the successful operation of most businesses.
Values versus policies
So how can employers reap the benefits of free discussion in the workplace without overly exposing themselves to risks of claims?
Employers should bear in mind that any restrictions that they impose on their employees’ right to freedom of expression should be absolutely necessary and proportionate. Regular, up-to-date and effective equality and diversity training for all staff is of the utmost importance.
Employers should also ensure that their disciplinary and grievance policies are drafted and implemented with a view to achieving the most objective and consistent outcomes possible. For example, ensuring that any potential witness to an allegation is not involved in the investigation or decision making process wherever possible, ensuring that an individual always has the right to appeal against an outcome and that the appeal is dealt with by somebody who was not involved in making the original decision.
Where the size of the organisation allows it, employers could also consider appointing a panel to make disciplinary decisions or hear grievances so that decisions are made by majority vote rather than by one individual acting alone.
While it is essential that employers stipulate what kind of conduct is considered unacceptable in the workplace, many experts argue that by spending too much time attempting to define the boundaries of free speech in any written code of conduct, you are not allowing employees to learn for themselves where those boundaries are and you are signalling an overly paternalistic relationship with your staff or an overly sanitised or sterile workplace environment.
Far greater importance in the modern workplace is the need for clear communication of the organisation’s values, culture and norms and ensuring that these tie in to a business's existing policies.
It is unrealistic to believe that employees’ views will always be in line with corporate values. Nevertheless, if staff are aware of an organisation’s values before they commence employment then, having made a conscious choice to sign up to the rules that govern how that firm works, they should be aware that if they contravene them, there will be consequences.
Camilla Beamish is legal director at Cripps Pemberton Greenish