“I do not agree with what you say, but I will defend to death your right to say it”. Voltaire’s classic quote rings hollow in today’s workplace where a raft of recent cases have highlighted the limitations on an employee’s freedom of expression.
Courts and employers have been grappling with the extent to which an employee’s religious or political beliefs can be accommodated with the workplace, and how an employer can monitor and control an individual’s behaviour or comments inside and outside the workplace.
The most widely publicised of the recent cases involved Ms Eweida, who succeeded in her action against the UK Government at the European Court of Human Rights (ECHR). She was prevented by her employer, BA, from visibly wearing a cross on her uniform. The ECHR found that BA’s refusal to accommodate this manifestation of Ms Eweida’s religious beliefs represented an infringement of her right to religious freedom. Ms Eweida's fellow Claimants at the ECHR were not so fortunate however. Two Claimants, who lost their jobs after refusing to provide services to same sex couples, due to strong religious beliefs, had their cases rejected. The ECHR found that an employee's religious beliefs could not trump an employer's right to insist that the employee adheres to its equal opportunities policy.
The ECHR, in another recent case, also had to address issues arising from an employer's reaction to an employee's political views. Mr Redfearn was a bus driver for Serco in Bradford. His job was to transport disabled passengers many of whom were of Asian origin. He was also a member of the BNP and was standing as a candidate in local elections. Mr Redfearn's political activities were brought to the attention of Serco who dismissed him from his job. Without a year's service, he could not claim unfair dismissal, and his, somewhat quixotic claim for race discrimination also failed. His claim against at the ECHR, however, succeeded. The Court found that, by failing to allow Mr Redfearn an opportunity to effectively challenge his dismissal, the UK had breached his right to freedom of expression. That is not to say that the dismissal might not have been found by a tribunal to be fair, but the matter was never tested.
While employers have an obligation to ensure that employees do not express views that could reasonably be construed as harassment, care needs to be taken on how far an employer goes in policing an employee's personal views. The High Court took a dim view of the demotion of an employee, Mr Smith, following comments made on his personal facebook page expressing disquiet at same sex marriage. Colleagues, who read the comments complained to their employer. The Court found that the comments were not offensive in nature and by no stretch of the imagination could be seen as harassment or bringing the employer into dispute. Employees would however be well warned not to presume that this will be the outcome in all cases. Had the employee in this case, associated his employer with his views or made personal comments about colleagues, then the outcome of this case could have been very different.
What many of the above cases have in common is not just the headache caused to the employer, but the fact that in many cases, it was colleagues of the employee in question who did the complaining. Ms Ladele, a registrar, who was dismissed for refusing to officiate at same sex civil partnerships, was dismissed after colleagues complained about her stance. Mr Smith was informed on by two 'facebook friends' who were co-workers, and Mr Redfearn was dismissed after concerns were raised by his employer’s trade union.
In all the cases cited, each party was convinced at the correctness of his or her position. To Ms Ladele, and her fellow Claimants at the ECHR, her Christian beliefs took precedence. To some colleagues, however, her views were unacceptable in the modern workplace. Mr Redfearn presumably did not view his activities outside work as being any concern of his employer, and there was no evidence of misconduct while at work.
The employer in each case faced a balancing act between respecting an individual's rights to hold religious or political views while ensuring that others were not offended by the expression of those views; an arguably difficult task in light of mutually incompatible beliefs and an increasing intolerance of those who do share the same views.
It doesn't look like the situation will get any easier for employers either. There are plenty of divisive issues appearing over the horizon. The ongoing controversy over the introduction of same sex marriage will be followed by referenda on Scottish independence and also potentially EU membership. In each case, passions are likely to run high and inevitably such issues will be ventilated in the workplace. A gentle reminder to all staff of Voltaire's maxim that we live in a liberal democracy and that this entails respect for others and their views, would not go amiss.