In recent years, increased polarisation in politics and society, often driven by difficult geo-political situations, has been inflamed by social media, with extreme imagery, disinformation and harmful content being shared, and individuals becoming increasingly vocal about their own views on world events.
These issues can have a significant effect in the workplace. Employees who express their views publicly or share and endorse content espousing a particular viewpoint, have also become an increasing feature of the modern workplace. With social media posts easily accessible by employers and an increasingly politically active and vocal workforce, employers responding to these types of situations have an unenviable challenge of maintaining a safe and tolerant workplace for all, often amid competing demands (either internally or from third parties) to hold employees to account for expressing their views on the one hand, and to support those employees on the other.
In this article, we take a look at some of the key issues arising where employees speak out, and best practices to support an inclusive, tolerant and respectful workforce.
Be aware of discrimination law
The Equality Act 2010 (“EQA“) makes it unlawful to discriminate against employees, job seekers, and trainees because of the protected characteristic of “religion or belief”. Under the EQA, “belief” is quite broadly defined as any religious or philosophical belief, or lack of belief.
In the case of Grainger plc v Nicholson [2010], the Employment Appeal Tribunal set out the criteria that must be established in order for a “philosophical belief” to be protected under the EQA. It must:
- be genuinely held;
- be a belief and not an opinion or viewpoint based on the present state of information available;
- be a belief as to a weighty and substantial aspect of human life and behaviour;
- attain a certain level of cogency, seriousness, cohesion and importance; and
- be worthy of respect in a democratic society and not incompatible with human dignity and or conflict with the fundamental rights of others.
In the recent Employment Tribunal case of Miller v University of Bristol [2022], a university professor alleged that he was unfairly dismissed and directly discriminated against because he had expressed anti-Zionist views in lectures and at an external event. He had been dismissed following complaints from students and third parties that he had expressed views which were antisemitic. He argued that his anti-Zionist stance was a protected “philosophical belief” under the EQA.
After applying the Grainger criteria, the Employment Tribunal determined that his anti-Zionist views were capable of being protected under the EQA and the professor was successful in his claims for unfair dismissal and direct discrimination against the University of Bristol (please see Bird & Bird’s summary of the case here).
This case serves to illustrate that whilst employees may have beliefs which may be highly objectionable and offensive to some, they are still capable of being protected under UK equality legislation.
It is important that employers take a considered and cautious approach when faced with opinions that may not otherwise align with the majority view or may come across as “extreme” to some communities. Any attempt to silence and penalise the expression of such views may serve to undermine an inclusive and tolerant workplace environment, and also expose an employer to legal risk, particularly in respect of claims of religion or belief discrimination, constructive dismissal and (if an employee is dismissed in connection with conduct or statements which relate to a philosophical belief) unfair dismissal.
Equally however, a failure to take action where someone “crosses the line” from protected speech into conduct which may amount to unlawful harassment or some other form of misconduct can also expose an employer to risk.
As a reminder, harassment occurs where a person engages in conduct related to a protected characteristic which has the purpose or effect of violating another person’s dignity or creating an intimidating, hostile, degrading or humiliating environment for that person. In the Miller case, it was alleged that the professor had expressed antisemitic views. If the Tribunal had found he had done so, his statements may have amounted to unlawful harassment related to religion for which (depending on the circumstances) his employer may have been liable.
It is clear that employers faced with a situation in which an employee has expressed views which are objectionable to others, either within or outside the workforce, are likely to have to make some very difficult judgements about whether or not this line has been crossed and how best to proceed.
Social media policies
Often, content posted on social media is at the centre of disputes in this area. It is likely to be helpful for employers to adopt a written social media policy to make their expectations of staff clear. Such a policy would set out, amongst other things, guidelines for the responsible use of social media (including any requirements to make clear that views expressed on social media are the individual’s own, guidance on the type of communications and posts that are and are not acceptable and any “no-go” topics), and to confirm that any breach of the policy may include disciplinary action up to and including termination of employment.
It is unusual for a social media policy to specifically call out the discussion of “politics” or the expression of particular beliefs as a prohibited use of personal social media accounts. This is because in the UK, the right to freedom of expression is protected by national and international laws and any attempt to limit it will be scrutinised carefully. It is however usual for employers to prohibit communication on social media that is defamatory or disparaging of others, false or misleading, malicious, discriminatory, or amounts to bullying or harassment, and to specify that any communications should be respectful of others. Employers with a particular set of values or principles (often set out in a code of conduct) may also specify that communications on social media must align with those values or principles. Clear written guidelines are likely to assist in (i) preventing inappropriate behaviour in the first place; (ii) providing a justification for disciplinary action if they are breached.
Employers should also consider whether their IT and electronic communications policies and/or staff privacy notices need to be updated to reflect any monitoring of social media use and to ensure compliance with the Data Protection Act 2018 and UK GDPR when monitoring social media activity and handling data that has been collected as a result.
Investigating allegations of unlawful or inappropriate activity on social media platforms
The internet continues to be a place where some individuals feel empowered to create or share content that others will find offensive, including some truly egregious material .
Employers need to carefully consider how they will proceed if they become aware that staff have been involved in putting offensive material online, sharing such material, or appearing to hold or condone offensive views or conduct. A proper investigation will be crucial. Failure to act in response to discriminatory or otherwise unlawful conduct risks damage to both employee relations and the reputation of the organisation and exposes an employer to legal risk.
However, as the Miller case has demonstrated, content or statements that some people consider racist or otherwise discriminatory may, in some cases, be found to amount to the expression of a philosophical belief under the EQA. Sometimes, as in the Miller case, the assessment will be highly nuanced and very difficult for employers to get right legally. Early legal advice is likely to be crucial to help an employer to mitigate the risk of discrimination claims, where proposing to take disciplinary action against employees who have expressed certain views.
Anti-discrimination policies and proper speak-up channels
It is important that employers have detailed and up-to-date anti-discrimination policies in place to make it clear that discriminatory conduct is prohibited and to provide appropriate channels for employees who are victims of, or concerned about, such conduct to raise their concerns without fear of retaliation. Key policies will include: (i) a code of conduct; (ii) a bullying and harassment policy; (iii) a diversity, equity and inclusion policy; (iv) a whistleblowing policy; and (v) a grievance policy.
A refocused workplace training programme
Most employers have long recognised the benefit of regular training about diversity, inclusion and respect in the workplace. Our experience of delivering “Respect in the Workplace” training is that employees are well able to spot more overt forms of discrimination. However, microaggressions and unconscious bias can be more difficult to identify and more pervasive, and the Miller case demonstrates that the expression of controversial views can be a particularly fraught area.
Now may be a good time for employers to consider how effective their existing workplace training is to address these types of issue and whether the content and training materials should be refreshed.
Minority support / networking groups
Employee networks provide much support for employees who may be looking for a safe space to seek out support and advice. For example, at the height of the Black Lives Matter movement, we saw a significant increase in employers forming Black and minority employee networks because they are an effective way to create a supportive unit within which workers feel able to discuss their challenges openly. They can also help to foster wider understanding of those challenges and encourage a culture of tolerance and respect.
Employers should consider whether these groups could be further supported through senior engagement and greater resources. There is a risk that without proper employer support and guidance, such groups become (or at least are perceived by others as) exclusionary, despite the best efforts of the employer: this can be mitigated through careful and regular messaging, making it clear that all are welcome.
Support employees’ mental health
This has been an incredibly difficult time for many people in different communities. Recent events may have triggered painful memories of past experiences with discrimination and conflict, so employers should be sensitive to this, and treat requests for time off for mental health reasons with sympathy and sensitivity. Support can also be provided through mental health workplace support programmes and HR assistance.
It is clear that employers have a very difficult path to tread in a world where employees seem increasingly willing to speak out, and where they can spread their views widely and easily with the tap of a smartphone screen. Employers who have not yet had to grapple with the ramifications of this should be prepared to do so if and when the situation arises: more and more businesses are likely to find themselves having to make hard decisions in this area.
For further information, please contact:
Alison Dixon, Partner, Bird & Bird
alison.dixon@twobirds.com
