Legal Q&A: Freedom of speech

The recent furore over the decision of the Oxford Union to invite the leader of the BNP, Nick Griffin, and holocaust denier, David Irvine, to address a debate has thrust freedom of speech to the forefront of the news. But does this concept exist in the workplace?

Q To what extent is there ‘freedom of speech’ at work?

A While we are proud of our general right to freedom of speech, at work there are, in fact, many constraints on this freedom. First, the relationship between employer and employee, by its very nature, means the employee is not always free to express their views – particularly where such views are tantamount to insubordination.

Second, there is the overlay of statute. In people’s private lives, they have every right to hold sexist views and, if they so choose, to debate these over the dinner table or at the pub. However, if such views were expressed in the workplace, the employee could expect to face disciplinary action, and both employer and employee might find themselves respondents in a tribunal claim. Even where there is no specific statute, employees who express their views in an offensive or forceful manner might be accused of bullying and cause other employees to raise grievances.

There are also constraints on an employer’s freedom of speech. A manager might not like trade union membership, but they do not necessarily have the freedom to say as much to their trade union member employees.

The only aspect of employment law that upholds freedom of speech to any material extent is the protection offered to whistleblowers.

Q Does the Human Rights Act (HRA) have any relevance?

A If a case comes before an employment tribunal, the HRA requires that the tribunal should interpret the law bearing in mind the European Convention on Human Rights, which includes the right to freedom of expression. It would be an unusual case, however, for this to make much difference.

Q What about the evangelical Christian trying to ‘save’ her gay colleague? Could freedom of religion protect her?

A Even the right not to be discriminated against on the grounds of religion does not allow religious employees to harass other employees. An evangelical may believe it is their duty to proselytise, but this will have to remain outside the workplace.

Q Can we dismiss an employee for membership of the BNP (or similar)?

A The 2006 case of Serco v Redfearn suggests this is certainly possible in appropriate circumstances. Mr Redfearn was a bus driver for elderly and disabled passengers in a largely Asian district of Bradford. He was dismissed shortly after being elected as a BNP councillor. Serco successfully argued that he was dismissed on health and safety grounds, given the risk of demonstrations. Redfearn’s claim that his dismissal was actually on ‘racial grounds’ was unsuccessful.

Q Could an employee dismissed for membership of the BNP (or similar) claim they were being unlawfully discriminated against on the grounds of their belief?

A The Employment Equality (Religion or Belief) Regulations 2003 originally protected employees on the grounds of ‘any religion, religious belief or similar philosophical belief’. Employment tribunals found this did not extend to BNP support. That said, the regulations have recently been amended by the Equality Act 2006 to apply to ‘any religious or philosophical belief’ to the extent that extreme right-wing political views could amount to a ‘philosophical belief’ (for example, white supremacism).

We can, however, be sure that any such protection will apply only to employees who do not bring their views to the workplace. Tribunals will have no truck with employees who breach equal opportunities policies. In other words, only those employees who do not exercise freedom of speech will be protected.

Trade unions have recently won the right to expel members with offensive views. In Aslef v the UK, the European Court of Human Rights declared that the English law preventing unions from dismissing employees on grounds of membership of a political party breached Article 11 of the European Convention on Human Rights relating to freedom of association. The government will now be changing the law.

Q What about freedom of speech in e-mails and blogging?

A Employees frequently, but mistakenly, assume that e-mails are temporary and unmonitored. In fact, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 make it clear that, subject to a clear policy, employers may monitor e-mails for a wide range of legitimate reasons. Also, the fate of bloggers who have defamed their employers shows that the internet is not a safe zone for disgruntled employees. No doubt we are not that far from the first cases relating to dismissals for comments posted on Facebook, MySpace, YouTube or other Web 2.0 sites.

Daniel Isaac, partner in the employment team, Withers

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