Workplace politics: When free speech becomes a faux pas

After a politically turbulent year, many employers are finding their workplaces more divided, with political views being brought into the office and the lines between free speech and inappropriate discussion increasingly blurred. So it’s important for firms to understand how to approach the potentially fractious issue of workplace politics. Just recently, a former UKIP councillor claimed that she was subject to bullying and harassment by her charity employer for expressing pro-Brexit views, which she argued was a legally-protected belief.

Despite losing her claim, the case has cast a spotlight on the topic of protected beliefs and political views, and it’s not a straightforward one for employers to navigate. In the face of this, it remains more important than ever for businesses to remain alert on the matter, preventing the political polarity we’ve seen globally from spilling into their own workplaces.

When looking to understand how political opinion fits into the context of protected beliefs, employers will likely find themselves struggling to establish a clear vision of the law in this area. While complicated, the most key part to consider is that, as well as religion, philosophical beliefs may be legally protected under the Equality Act (2010), and any political views would fit into this category to be protected.

A 2010 tribunal in the case of Grainger plc v Nicholson set out the criteria for what can be constituted as a philosophical belief for the purposes of discrimination law. To be legally protected, any political view would need to satisfy the five parameter test in Grainger, most notably to be held as a genuine belief rather than an opinion, and to also be worthy of respect in a democratic society.

If someone possesses strong views that align with a political party, for example, it could be considered a protected belief if they have held lifelong values based on this. If these views are expressed in a hateful way, however, or are perceived to support extremist activity, they would unlikely be considered worthy of respect in a democratic society and therefore not legally protected.

While important for employers to remain aware of this test, they cannot be reasonably expected to be versed on all legal criteria and nuances that accompany this topic. The standards set by the Grainger case are certainly useful to understand, but in reality any claim will be judged on a case-by-case basis due to the complicated nature of political views in the workplace.

In today’s divisive political climate, we have seen a lowering of the threshold of what may be considered a philosophical, and therefore protected, belief. This means it is vital for employers to remain alert of the conversations taking place in their own workplaces, striking a balance between freedom of speech and what can be accepted as appropriate, lawful discussion.

Amidst the nuances, the best advice for employers to take is to establish and update internal procedures. A clearly defined and well communicated policy will ensure that all cases are treated with a consistent approach. Many businesses will typically have a grievance procedure already in place – it’s important to review this in the context of protected beliefs, and businesses can seek legal advice to ensure that their policies are up to scratch to handle complaints of this nature.

Employers must remain on alert for instances of hostility or bullying

With procedures established, employers must remain on alert for instances of hostility or bullying. Where political conversations or debate do arise, they should ensure that workers don’t feel victimised as a result. Being aware of this can allow employers to signpost workers to the right processes so that they’re able to raise concerns appropriately. It’s also important to exercise caution here, however, to prevent fostering a culture of complaints which could arise if some workers use complaints processes inappropriately.

In this case of the former UKIP councillor, the claimant made posts that were perceived to be offensive on her personal social media, which led to her charity employer letting her go. Businesses must approach similar cases with caution, recognising that people are increasingly aware of their freedom of speech and the avenues, including social media, that they have to express this. Taking action against employees for what they say on their own social media is becoming a legal battleground and businesses must consider the risks of doing so.

This doesn’t, however, mean that employers can’t also have a social media policy in place that can set boundaries for what workers share in connection to their work, including anything that could bring the business into disrepute. Arguing that posts bring an employer into disrepute will require proof that this has indeed been the case; often employers wrongly argue disrepute when, in fact, no damage to their reputation has actually occurred.

To bolster these internal policies, it’s essential that employers foster a culture of understanding and awareness within the workplace. Compulsory training for all staff around diversity and inclusion will allow better understanding of varying perspectives across the board. This is particularly important where there are competing political views or conflicting protected beliefs in a workplace, to help ensure all workers are aware of the standards of appropriate discussion. This training can align with a policy centred around dignity and respect, which employers can use to set out what is acceptable in workplace discussion, and to prevent offensive language without infringing on freedom of speech.

A culture that encourages mutual respect and consideration is the best way to prevent complaints progressing. In instances that they do, businesses should adhere to established procedures, seeking legal advice where needed to help navigate politically divisive matters in the workplace.

David Browne

David Browne, head of employment at law firm, Shakespeare Martineau