Long reads

Free speech at work

27 Sep 2017 By Cathryn Newbery

The row over a Google engineer’s ‘sexist’ memo begs a bigger question: is it possible or practical to let people speak their minds at work?

The Google engineer who authored the now infamous ‘women in tech’ memo this summer was prophetic when it came to his own fate. “We have an intolerance for ideas and evidence that don’t fit a certain ideology,” he wrote. “Google’s left bias has created a politically correct monoculture that maintains its hold by shaming dissenters into silence.”

James Damore was duly shown the door, and the veracity of his claims about women’s suitability (or lack of it) for a career in tech engineering has since dominated media debate. But was he on to something about the nature of free speech at work? What’s the business imperative for being comfortable to air your views? Are the employers that espouse values of open communication, and spend thousands on mechanisms to listen to employee opinion, actually listening – or just paying lip service to it? And how can organisations enable their staff to speak honestly – about their personal views and business challenges – in a non-emotive way?

Free speech is a tricky concept to get your head around. UK citizens have a legal right to freedom of expression under common law, but it is not absolute and is limited by the rights of other individuals. Broad legal exceptions to free expression include words or behaviour likely to cause harassment, alarm or distress, hate or extremist speech and libel. (It’s because of these parameters, for example, that a teacher who was a member of the BNP was sacked in 2015 after he told students he was ‘allergic’ to Muslims.)

Employees in the UK don’t have an explicit right to free speech at work, but other rights – such as not to be unfairly dismissed, and around discrimination and whistleblowing – bring the concept of free speech into play, says Jim Wright, partner in the employment and HR team at Shulmans. “It is always more of a freedom that’s balanced against other hard rights. It isn’t straightforward, which is an issue for both employers and employees.”

Case law in this area is complex, he explains: “Because we don’t have the express, free-standing right to free speech, people are always trying to push their beliefs into some form of discrimination.” In 2009, a court ruled in favour of an employee who claimed he had been discriminated against on the grounds of his philosophical belief in environmentalism. Two years later, a garden centre staff member who morally opposed bloodsports was sacked by the business’s owners, who were members of a local foxhunt, and was found to have been discriminated against because of his beliefs.

But a tribunal ruled against an employee who claimed that the 9/11 and 7/7 terrorist attacks were ‘false flag’ events because, says Wright, “the beliefs didn’t meet ‘the minimum standard of coherence and cohesion’, and were therefore not capable of protection against unfair dismissal”.

Even things that can legally be voiced at work would be unwelcome in most workplaces and could be highly detrimental to morale. Think about the consequences, for example, if an individual who had an affair was berated at work by a colleague who felt their behaviour was immoral. Most HR professionals would feel they clearly needed to stop such a confrontation. Which means the bigger question remains: how far can we allow free discussion at work to go?

If you don’t let staff to talk freely, says Dr Wilson Wong, head of insight and futures at the CIPD, “you are not allowing them to exercise quite serious and adult rights. If you define the boundaries of free speech, and don’t allow employees to learn where those boundaries are, you are signalling that you want a paternal relationship with your staff.

“In every debate – whether it’s about politics, religion or whatever – the underlying question is: what kind of organisation are you? If the organisation wants a mature, adult relationship with its staff, apart from some ground rules (around stuff like fascism and racism) the rest of it has to be negotiated.”

Employers need to be ready to accept that employees’ views might not be in line with their corporate values. Wong cites a company that publicly backed the drive to achieve 30 per cent female representation on FTSE 100 boards, despite internal discussions about whether – given that the end goal is 50-50 representation – it was right to aim for a lower, but more achievable, target.

And you can’t allow staff to only have frank discussions about work matters, says Isaac Getz, professor at ESCP Europe Business School – the same rules have to apply to all conversations. “If you want people to step forward and say what they think, it can’t be authorised for some areas and forbidden for others,” Getz adds. “The employee who is silent regarding his opinions on how people are recruited won’t say anything about the product that is not good either. It’s self-defeating.

“If the CEO sits in front of all his employees and his fly is down, does anyone tell him? Or does everyone just sit there for an hour, staring and not listening? Does this company have a culture of fear? Of compliance? Or of responsible, autonomous, free adults who take the initiative when there is a problem?”

Google’s approach – of firing the memo’s author – falls squarely in the ‘compliance’ category, says Stephen Frost, a D&I specialist and founder of consultancy Frost Included. “Yes, they needed to move quickly, but I’d love to have seen them beat the guy on the facts,” he says. “To say: ‘If you want to have a debate about the biological differences between the genders, bring it on.’ That facilitated discussion would have given Google leadership authority on this.”

Wong adds: “By firing this person for being honest enough to express his, perhaps unenlightened, view, Google has changed the dynamic of the culture in the organisation. It becomes ‘thou shalt not speak’ for fear of crossing a line that the organisation has set. He could have been engaged to discuss why he has these issues, and then you have an opportunity to deepen and further educate or expose your workforce to the issues. It’s unfortunate that this incident mirrors the archetypal accusation against HR – that when an employee does something like this, the HR rulebook is thrown at them, and the person is dismissed.”

There are myriad benefits of free discussion to businesses beyond saving their senior leaders from embarrassing wardrobe malfunctions. For the NHS, it really is a matter of life and death, says Danny Mortimer, chief executive of NHS Employers: “In the last four or five years, the NHS has done a lot of work about candour and whistleblowing; about trying to encourage people to express concerns about things that have gone wrong, that the public or their employer needs to know about. Creating workplaces where people are able to speak up is a massive part of our cultural development.”

Every statutory NHS organisation has an independent freedom to speak up guardian to whom staff can raise concerns. The guardians are also charged with making sure each organisation’s culture, policies and ways of working are conducive to speaking up. “We have an absolute imperative to develop safer ways of working and cultures in our organisations; recognising problems and learning from them is a central part of that,” says Mortimer.

Private sector firms are also starting to realise the benefit of engaging employees at such a deep level, according to Stefan Wissenbach, founder and chief engagement officer at Engagement Multiplier, which develops anonymous employee feedback systems: “One of our clients estimates that giving employees the opportunity to anonymously and confidentially submit their improvement ideas – and acting on them – has added more than £1m to his bottom line in the first year alone.” Those without the budget or workforce size to warrant introducing an online feedback system can open up conversations through things as simple as an anonymous questions box in the staff canteen, he suggests.

Creating spaces in which it feels psychologically safe to speak up is essential for supporting minorities, says Frost: “BAME individuals and women generally feel less safe to speak up than white men. And that’s not only of interest morally, it’s of interest because the company is not being efficient in its use of human resources – there are brilliant people who aren’t being used properly. It’s diversity without inclusion.”

That inclusion and safety must extend to those who aren’t members of minorities as we classically define them, says Frost. “In liberal, progressive industries in the UK – such as the media, science and universities – conservatives and men can feel threatened and that they can’t speak up. We’ve got to give them space to do that.” Inclusion diagnostics are more powerful here than straightforward employee engagement surveys, he adds.

While some organisations might be tempted to rewrite the HR policy book to define new boundaries for discussions, Wright says that’s not the best approach to solving this problem: “What you need is for the values of the organisation to be communicated far more clearly, and have those tied to your existing policies.

“You could make it clear that, if people want to express certain views at work, they must ensure they are appropriate for the environment and that they are not expressed in a way that is going to cause offence to others.” An employer can have a legitimate interest in limiting what employees say on social media, too, adds Wright, because of potential threats to the organisation’s reputation.

If a heated debate arises, Wong recommends ‘freezing’ the conversation so no further fuel is added to the fire, and inviting interested parties to a face-to-face town hall discussion: “With the help of a good facilitator, you can focus on the issue – not the emotion. And the issue will be: what kind of exchange do we want to have? Not the specifics of that exchange – whether that’s about politics, religion or whatever – but what are the general principles we want to guide that exchange.” Each intervention you make as an organisation needs to take you closer to that cultural vision, he says.

Free speech will remain one of the trickiest areas of HR practice – and when protected characteristics or individual moral convictions are involved, there will never be a single rule of thumb at work. But every business should think about the Damore case, and how it would react in a similar situation. As Frost puts it: “If you have a particular view, that’s your right and I can’t change who you are. But if you are affecting the rights of somebody else, then that’s an issue.

“If you’ve chosen to work for an employer, you’ve made a conscious choice to sign up to the norms and rules that govern how that organisation works. If you contravene them, there are consequences – that’s the deal. The problem is too many organisations either aren’t clear on their culture or norms, or lack the confidence to interpret them.”

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