Employers Must Respect The Law On Freedom Of Expression

In the last two years we’ve dealt with an increasing number of cases where complainants of one persuasion or another have sought to silence people with whom they disagree, by making complaints to their employers. These complainants, sometimes anonymous and often incoherent, have argued that they have been offended in some way and that the individuals they disagree with should be dismissed. Most cases should have been kicked into touch early on but corporate cowardice has meant that disciplinary cases have followed.

Regrettably however, many employers, demonstrating the sort of shallow analysis and lack of thought that we have come to expect, have left relatively junior managers to deal with complex legal and philosophical issues that they simply don’t understand. Political correctness has run riot and people have been put through hell for simply exercising their right to freedom of speech, often well outside the workplace.

Affinity is non-political and has no ideological stance, except our determination to fight discrimination of any sort wherever members experience it and defend free speech. Put simply, we believe in the rule of law.

Earlier this week, an Employment Tribunal published its Judgement on the case of Allison Bailey. Ms Bailey is a black, lesbian barrister who argued at the Employment Tribunal that she had been victimised and discriminated against by her employer, Garden Court Chambers, after she expressed gender critical beliefs.

Gender critical beliefs centre on the view that someone’s sex (i.e. male or female) is biological and cannot be changed and is separate to gender identity (which is whether someone identifies as a man or a woman). Gender critical views have been shown to be a protected philosophical belief under the Equality Act.

Ms Bailey had tweeted about her views and her employer tweeted that it would be investigating those tweets. The Tribunal ruled that this was an act of discrimination on the part of her employer, because her views were protected in law; accordingly, it awarded her compensation of £22,000. The Judge quoted an extract from earlier case (Redmond-Bate v DPP (1999) EWHC Admin 733):

“free speech includes not only the inoffensive but also the irritating, the contentious, the eccentric, the heretical, the unwelcome and provocative, provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having”.

The Judge was extremely critical of both the preparation of the case by the employer (a chamber of barristers whose business is the law and who might be expected to know how to prepare a case properly) and the employer’s behaviour.

Ms Bailey’s case is an important reminder that employers must respect the rights of staff to freedom of expression. We’ve dealt with a significant number of free speech at work cases and have found that all too often, the prevailing corporate culture is pro-political correctness to an extreme degree. This creates an immediate conflict between individuals’ rights to freedom of expression and the corporation’s (often just a junior manager’s) demand that they toe an ideologically pure line.

Senior managers are ultimately responsible and accountable for what happens in their organisations and they have to decide whether they’re going to defend the right to freedom of expression in their workplaces in cases where people are attacked unjustifiably for expressing views which are protected by law.

Affinity – Defending Free Speech

It’s stating the obvious to say that employers are in powerful positions relative to staff and, unless employees are represented by an effective trade union with a preparedness to fight for free speech, it’s often impossible for them to stand up for their rights. We find that employers start to behave far more reasonably the moment we become involved.

We’ve decided that we have an obligation to act in the interests of all our members, irrespective of the views they hold, and the best way of dealing with that is to focus on protecting their rights under the law, including their rights to free speech. We refuse to take a particular stance on political issues and remain neutral so that we can represent all members effectively. Our members can be certain that, whatever views they hold, we will always fight to protect their right to hold those views under the law.

The same cannot be said for those trade unions, which have aligned themselves with agendas that are in conflict with the views and interests of their members.

Because their unions proved unprepared to defend free speech, a significant number of members, most notably university academics, have joined us over the last two years.

If you’re criticised at work for expressing your beliefs or think you might be criticised, contact the union’s 24-hour Advice Team on 01234 716005.