Legal

How much of their ‘whole selves’ should staff bring to work?

12 Aug 2021 By Tarun Tawakley and Emily Atkinson

Tarun Tawakley and Emily Atkinson discuss the fine balance of employee opinions on various societal and political issues, which could be offensive to some

In seeking to foster a more diverse and inclusive workforce and attract talent, employers are increasingly encouraging employees to bring their ‘whole selves’ to work. In turn, many employees feel empowered to speak out at work about a variety of societal, political and environmental issues and may expect their employer to do the same. 

Companies and brands may take a stance on issues in their consumer-facing activities such as by social media blackouts or adopting pride flags. This can leave them open to challenges in the public arena and criticism or backlash internally if their practices fail to live up to their public statements. Companies must therefore balance the expectations of their employees with those of their customers against their actions.

Further difficulties may arise if organisations speak out on campaigns that have broad support (for example; #MeToo or Black Lives Matter), but stay silent on more divisive issues, where that silence in itself can be regarded as some kind of statement.  

Employee opinions will inevitably differ, especially in diverse workplaces. Frank expressions of religious, philosophical or political views may cause a degree of upset or offence, even if none is intended. 

Some tech companies in the US have reportedly taken an extreme approach by introducing policies prohibiting discussion of politics and social causes at work – most publicly, Coinbase and Basecamp. They even offered severance packages to those who didn’t like the policy, leading to Basecamp reportedly losing a third of its staff, and Coinbase 60 people. 

Do employees have the right to express their opinions at work?  

Yes, but not without limits. Freedom of expression is a fundamental human right and extends to views that can shock or offend, but it must be balanced against the rights of other people. It would not, for instance, protect statements that unlawfully discriminate, harass or incite violence or hatred. 

Are employers obliged to stop employees expressing offensive or shocking opinions? 

Yes, to a certain extent. Employers have a duty to protect the health, safety and welfare of their workforce, which could include potential upset or distress caused by conflicting views and expression of opinions at work. Employees must also be protected from unlawful discriminatory acts and harassment in the workplace, including on grounds of religious or philosophical beliefs, race, sex or age. 

However, the extent of your obligations to curtail the opinions of employees only goes so far. It would include communications on an internal channel such as, Teams, Slack, Hangouts, Workplace, even if the conversation was not strictly work-related. 

But court decisions have shown that employers may sometimes overstep the mark when curtailing freedom of expression or disciplining employees for things said in a completely private context – for example, on their personal Facebook or Twitter account. 

What if the opinion is a religious or political belief? 

People with religious and strongly held philosophical beliefs are protected by UK equality laws, but political opinions are not (apart from in Northern Ireland). The scope of the protection for beliefs is extensive and can lead to some surprising results. For example, beliefs in the sanctity of life, fervent opposition to fox hunting and ethical veganism have been found to be covered. 

It is important to balance the competing interests of all parties involved, although this is fraught with difficulty. Take, for example, an employee with deeply held religious convictions about homosexuality. 

Clearly, the rights and freedoms of such an individual need to be handled with caution, taking due account of how other staff are or may be affected by their opinions. You would need to consider the nature and context in which something is said, any damage caused by it and the impact on the parties, business, and workplace culture when considering whether to take disciplinary action or impose a sanction. 

How should you approach these issues?

Firstly, consider your organisation’s culture and the tone you wish to set. Fostering a culture of mutual respect and understanding can help set the scene and avoid workplace conflicts. Ensure your corporate and commercial values are aligned, both internally and externally, and that senior leaders exhibit the behaviours expected and are living those values. 

Having suitable policies and procedures, value statements and codes of conduct in place is also important. These should cover areas such as diversity and inclusion, social media and communications, and employee health and wellbeing. Any such policies need to be understood and followed in practice and not simply a ‘tick-box’ exercise. Regular training is essential, particularly for managers. 

If you decide to adopt a stance on a specific topic, you should first consider the broader potential impact. If you express the position internally but not externally and commercially, you risk accusations of hypocrisy. Conversely, taking a stance commercially that is not reflected internally – especially in how you deal with your employees – could lead to an unwelcome backlash. 

Any issues you face should be tackled consistently and with your employees in mind. Take the time to consult and understand your employee population, how they may react in different scenarios and what they expect from you as their employer.

Tarun Tawakley is a partner and Emily Atkinson an associate at law firm Lewis Silkin

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