Allison Bailey ruling: should employers police workplace freedom of speech rows?

In light of a headline-making decision centred around the ongoing debate on gender-critical beliefs, People Management speaks to HR and legal experts about organisations’ roles in such situations

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Last week, barrister Allison Bailey won an employment tribunal discrimination case after claiming she lost work and was victimised by her employer and colleagues for tweeting and upholding gender-critical beliefs.

The case made headlines not least because it centred around still-contested views on gender self-identification, as well as Bailey’s founding role in the LGB Alliance (which opposes the view that transgender women are women in the eyes of the law), and involved Stonewall and its Diversity Champions scheme (used by many employers to promote LGBTQ+ inclusion at work).

With the ruling only re-accenting fault lines in an ongoing so-called ‘culture war’ around gender, identity and freedom of speech – indeed, Bailey’s employer, Garden Court Chambers, said it may appeal the ruling while the criminal defence lawyer lost the part of her case against Stonewall – many employers will be taking note, particularly as they try to understand more about their role in setting expectations around how they interpret, expectation-set and potentially police beliefs espoused by their employees.

Freedom of speech, the law and the workplace

There are a number of key laws that employers need to be mindful of when considering how employee beliefs and freedom of speech play out at work.

Foremostly, the Equality Act 2010. The decision in the Bailey ruling was taken in light of the landmark Maya Forstater case, which ruled that this claimant was entitled to express views on gender as they constituted a philosophical belief, which is protected by the Act.

A 2010 case gives employers a quick run-through of tests that can help employers determine what constitutes a belief, which includes asking whether a belief is genuinely held; whether it is a belief rather than an opinion; whether it relates to a substantial aspect of human life and behaviour; whether it is cogent and serious; and whether said belief is worthy of respect in a democratic society and does not conflict with the fundamental rights of others. 

Critically, Joan Pettingill, employment law partner at gunnercooke, explains that unless a belief unduly impacts, to a significant degree, on the rights, freedoms and protections of others, it will be protected by the Act. She adds: “Employers will perhaps appreciate the relatively low threshold for a belief to qualify for protection [from the Equality Act] and will need to have this in mind when considering these types of issues in the workplace.”

However, the same Equality Act can also act as a restriction on freedom of expression if communicated beliefs begin to intersect with harassment provisions within the Act, as explained by James Potts, legal services director at Peninsula. (Ergo: each case does need to be considered on its own merits and there is no blanket approach.) He says: “Harassment is generally defined as an engagement in unwanted conduct related to a protected characteristic that has the purpose or effect of either violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. 

“Freedom of expression is [therefore] restricted in a work environment if the unwanted conduct is related to another person’s age, disability, race, sex, gender reassignment, sexual orientation, religion or belief.”

Pettingill adds that freedom of speech is not a cast-iron employment right. “It is not totally unlimited freedom…although the cases provide for a high threshold before a belief falls outside the bounds of what is potentially a legally protected belief,” she says.

In addition, while article 10 of the Human Rights Act 1998 gives everyone the right to freedom of expression, Potts says this doesn’t give employees the right to say whatever they want, which can create a difficult situation for employers. “This represents a complex balance in terms of the right not to be discriminated against as a result of their employees’ right to hold certain philosophical beliefs,” he says, especially as employers are obliged to protect employees from suffering and discrimination from third parties in connection with their work.

“Employers can be vicariously liable for the actions of employees taken in the course of their employment,” he adds. “This does not preclude individuals from being held liable for their own discriminatory behaviour or harassment in the workplace in connection with their employment, but it may be that both the employer and the individual would be held jointly liable for the conduct.”

What does the law mean in practice?

Almost everyone that has been involved in a workplace knows how the law works and that how it plays out in an employment setting might differ. As Idris Arshad, people and inclusion partner at St Christopher’s Hospice, notes: “It’s one of the most complex areas of employment there is and there can be inconsistencies [in overseeing the free speech issue], especially as sometimes these things [beliefs] are shared in kitchens or in intra-teams conversation.

“But what it means is, we can’t come at it with a sledgehammer approach. What you’ve got to do is make sure your people learn and understand.”

For Potts, this means employers should take a preventative approach, focusing on expectation setting, policy creation, I&D training and early intervention when issues are brought to their attention.

He says: “The employer’s response is likely to dictate the way in which the company’s reputation might be viewed by a court, by fellow employees and by members of the public. A failure to act reasonably or appropriately could also lead to a specific liability where loss or harm is suffered.”

For Pettingill, employers need to be mindful of where beliefs shared at work might cross over into a criminal act (whereby they might incite violence) and how an individual employee might impact important contracts and their customer reputation. She adds: “Employers need to consider what the individual’s role is [if they share something]. Does what the individual says fall foul of contractual confidentiality rules, breach the employer’s security or data protection rules in some way or impact upon the reputation of the organisation or their colleagues? Might a genuine occupational requirement to hold a particular belief be relevant?”

Arshad also explains that employers should be consistent with their views, as well as what they believe is unacceptable workplace behaviour from the point of showcasing who their brand is, so they can hire into the organisation in a way that makes sense.

He adds that manager training is key and that employees raising concerns about others know who they can speak to and feel protected in doing so. “We [as HR] have got to understand the role powerful people in our organisations can play,” he says.

Some employers take a more freewheeling approach. Amelia Sordell, founder of agency Klowt, says as long as she feels she’s done the background social media checks before hiring and that the views don’t jar too much with the company view, she’s OK with employees sharing their views and posting online. She says: “I might not agree with what they share online but it’s their opinion and I can’t sit here and say ‘share your opinion online, be empowered’ and then tell my team what they can and can’t post. 

“If we do that we’ll never ever win the trust or advocacy of employees. Let people post what they want, give them a framework to work from and the freedom to operate in that framework.”

And, as Arshad says, sometimes it's about creating pathways for development if an employee shares a view that might jar with what the organisation believes is there: “We’re human, we’re not robots and we’re going to make mistakes. So let’s try and get everyone to a good point in this and understand that they’re all on a journey.”

It is this guidance-centric approach that Kate Bishop, CHRO at the IFS, believes should underpin any HR and employer approach in this area, with leaders modelling what they think are critical behaviours and values. “Policies should be fairly high level as each situation will be unique,” she says. “Therefore, having general guidance based on core values while recognising local legislation is critical.”