Should an employee’s unsavoury or offensive opinion always lead to dismissal? Beverley Sunderland looks at examples from case law and outlines how employers can handle staff whose views have upset others.
As we are increasingly seeing public figures being “cancelled” due to their views, it could be easy to form the opinion that anyone making comment that others disagree with can simply be dismissed.
Handling employee opinions
Recent examples include Piers Morgan stepping down from Good Morning Britain after he expressed his views on the Duke and Duchess of Sussex, and the recent case of Maya Forstater whose consultancy position was not renewed by the Center for Global Development (CDG) after she posted a number of tweets which questioned government plans to let people declare their own gender. Forstater said she believed that sex is biologically immutable and binary.
Legal protections
Regardless of the headlines, which make it look simple to remove someone from their position if they offend the views of others, in reality taking action can be far more difficult. This is especially true of employees, although contractors performing work personally for an employer are also protected by the Equality Act as ‘workers’, as CDG discovered in the Forstater case.
Such is the concern among academics, students and visiting speakers about the impact expressing unpopular views might have on their relationship with a university, the Queen announced the Freedom of Speech (Higher Education) Bill allowing them to seek compensation through the courts if they suffer loss from a breach of their free speech rights. But is that really necessary?
Following the Forstater case, the threshold needed to prove a person holds a philosophical belief has been lowered. The belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. The Employment Appeal Tribunal made it very clear that just because others disagree with a particular view, it does not mean it is not worthy of respect in a democratic society – especially as in Ms Forstater’s case, it is a view which is recognised by law.
The EAT reminded us that under articles 9 and 10 of the European Convention on Human Rights (ECHR) importance is attached to diversity or pluralism of thought, belief and expression and their foundational role in a liberal democracy. It said that beliefs that were offensive, shocking or even disturbing to others, even those which constitute less grave forms of hate speech, would not be excluded from ECHR protection – although their manifestation may, depending on the circumstances, be justifiably restricted.
Justifiable restriction
So, when can this justifiable restriction occur? In any organisation it is important to maintain good employee relations and it is likely that there will be tension between two firmly held views – for example, a religious belief that a unity should be between a man and a woman, and the right not to be discriminated against or harassed on grounds of sexual orientation.
A policy should recognise the differing views of those in the workforce but make it clear that it is important that all employees respect the views and protected characteristics of others”
The courts have had to tread a careful path – in the cases of Ladele, a registrar refusing to marry gay couples on religious grounds, and McFarlane, a counsellor refusing to counsel same sex couples, it was found that neither were discriminated against when they were dismissed. In both cases there were clear policies in place to prevent discrimination against those using the services and in both cases the employers had balanced the rights of the employees with the need to comply with these policies.
Equally, a religious nurse Ms Kuteh who had been warned not to discuss religion with patients as it was upsetting them – in one case telling a bowel cancer patient he had a better chance of survival if he prayed – was not dismissed because of her religious beliefs, but because she had refused to obey a lawful instruction. This was upheld by the Court of Appeal.
Policies
Employers should have very clear policies outlining what is and is not acceptable, and ensure that an employee’s opinion is properly characterised. As Asda discovered in the case of Walters, wrongly categorising posts on social media as misconduct and not gross misconduct meant that dismissing an employee for suggesting that she would hit customers with a pick-axe did not justify immediate dismissal without notice.
A policy should recognise the differing views of those in the workforce but make it clear that it is important that all employees respect the views and protected characteristics of others and harassment on the grounds of protected characteristic will not be tolerated.
For universities, an exception should be to encourage respectful debate of difficult and sensitive topics. Without debate and challenge we will find ourselves at the mercy of those who shout loudest on social media and all other views will be silenced.
If an employee, contrary to this policy, vocalises views which causes offence to others or brings the employer into disrepute, they should be disciplined. This is for disobeying a lawful instruction and not because of the views they hold. Although this may be indirectly discriminatory, the employer has the defence of objective justification.
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Such a policy must be consistently applied, and an employer must consider all options such as training and mediation before dismissal.
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