Employers are facing an unprecedented challenge when it comes to freedom of speech in the workplace. Increased polarisation of opinions on topics such as the gender-critical debate, the Israel-Gaza conflict and even UK politics means that debates about personal opinions have become more frequent than ever. Such debates are regularly brought into the workplace, and this trend is likely to continue, particularly with regard to transgender inclusion issues, with cases such as For Women Scotland directly impacting a number of employers and employees.
At the same time, recent cases such as Higgs v Farmor School seem to limit the restrictions employers can lawfully place on employees’ expressions of views which some employees may find offensive without discriminating against those employees on the basis of religion and/or belief. Against this backdrop, many employers are understandably concerned about how to approach cases where one employee has offended another employee, or a third party, through the expression of their views. This article will look at some of the specific challenges which can arise in such situations and offer some potential solutions.
The Higgs case: a recap
In the case of Higgs v Farmor School, Mrs Higgs, a school administrator, published posts on Facebook which expressed gender-critical views. The school was informed by a member of the community about these posts and dismissed Mrs Higgs for gross misconduct, on the basis that (in the school’s view) someone who saw the posts might infer hostility to transgender people. Mrs Higgs brought claims for discrimination and harassment on the grounds of her gender-critical beliefs. Although Mrs Higgs lost at Tribunal, the Court of Appeal found that Mrs Higgs’ dismissal was discriminatory, also upholding the EAT’s finding that it had contravened Articles 9 and 10 ECHR. While it accepted that the school had found the content of Mrs Higgs’ posts objectionable, it found that Mrs Higgs’ dismissal was disproportionate, on the basis that the language used was not grossly offensive and was derogatory rather than amounting to hate speech. There had been no evidence of reputational damage to the school (there was no perceived link on Facebook between the school and the posts) or that Mrs Higgs’ views would influence her work.
Challenges arising post-Higgs
The Higgs case is a salutary reminder to employers that, when applying a sanction to an employee for expressing political and/or religious views in an offensive manner, the sanction may be discriminatory unless it can be shown that it was proportionate to the actual or likely offence, harm or reputational damage caused.. Similar tricky situations employers may face might include:
- An employee expressing views which another employee finds deeply upsetting, but they are upset by the views themselves rather than the manner in which they are expressed. This is a situation which is likely to crop up often in the context of the gender-critical debate, and which has also appeared in the context of the Israel/Gaza conflict.
- An employee and a client of their employer (or other third party) clashing over personal beliefs. In this situation, the employer may well be concerned about the damage to that client/third party relationship, and this may inform their judgement about harm and reputational damage.
- Employees expressing views in their private lives, where they are not expecting those views to be shared with their employers – for example, on social media, and they are reported by colleagues or others in their network. Such employees may argue that they are expressing views purely in the context of their personal lives, and they should be free to do so without worrying about how it will be perceived by their employer.
- Employees who react strongly to policies imposed by the employer which they disagree with on religious and/or political grounds, and who are vocal about their disagreement, and/or encourage other employees not to comply.
Ways to mitigate risk
Employers could consider mitigating or avoiding the above situations as follows:
- Setting clear expectations with employees as to the manner in which they express religious and/or political beliefs, and encouraging them to do so with sensitivity to others, and to think carefully before doing so at all.
- Where the expression of beliefs has led to clashes between employees, employers may consider setting a blanket policy requiring employees to avoid discussing political and/or religious topics in the workplace, bearing in mind any indirect discrimination risks.
- In such cases, employers may also find it helpful to consider mediation between the clashing employees to restore the working relationship, and whether this could solve the issue more fairly than dismissing one of the employees or imposing a harsh sanction.
- Reminding employees that the material they post on social media may be viewed by colleagues or clients, and that they should consider carefully what they post in that context (and/or consider appropriate privacy settings).
- Employers should avoid knee-jerk reactions when disciplining employees for the expression of their beliefs, and this may be particularly relevant to situations where a client or other third party has expressed concern about an employee’s beliefs. Employers should think about the actual or likely risks to a client relationship caused by an employee’s manifestation of their beliefs (rather than the purely hypothetical risks). In most cases, it will be appropriate to discuss the situation with the employee as well as with the client before taking any action.
- When implementing new policies which could impact particular groups of employees sharing religious and/or political beliefs, employers should act with sensitivity, and could consider consulting with particular employees or groups of employees before finalising the policies – this may ultimately mean that such policies are met with less resistance.
Please do not hesitate to contact us should you require assistance with dealing with any similar situations, or if you would like advice following the For Women Scotland case and the new EHRC interim update. For further information on this topic, please see our webinar on it from February this year.
Authors
Related legal expertise
Connect with us
