Freedom of speech in the workplace

  1. free speech
    People HR

    People HR UKBF Newcomer Free Member

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    In association with People HR

    The answer to whether or not employees have freedom of speech is a lot of “it depends”. This article explains under what circumstances and in what ways employees have the freedom to express their views. 

    Companies constantly try and fail to navigate the minefield of employee speech-related issues. Google, for example, is in the news again, this time for allegedly firing an employee for his conservative political views. The employee sent a company-wide memo calling the tech giant out for a culture that curtails conservative speech and a diversity policy that does nothing to include different political views. He also indicated that Google’s diversity policy and affirmative action to hire and promote women and minorities actually adversely impacted white males.

     While discrimination on the basis of race and sex - if true - would be illegal, the issue of protected political speech is less straightforward. The US Constitution protects freedom of speech from government control, but it does not protect speech from employer control. Political speech at work is also not protected under Federal Employment Law, unless it somehow relates to employee working conditions as defined by the National Labor Relations Act.

    But that’s the US - what if this happened in the UK? As an international company with offices in more than 70 countries (including the UK), Google is subject to a number of different countries’ employment laws. Their London office must abide by UK laws. So what types of speech are protected in the workplace in the UK?

    Free speech in the workplace

    In the UK (outside of additional rights granted by employment contracts) employees actually have fewer legally provided rights than in the US.  Contracts set out an employee’s employment conditions and must include:

    • start date and employment term 
    • job title and duties
    • pay rate and frequency
    • place of employment
    • sick pay
    • normal hours of work
    • holidays
    • pension entitlement
    • grievance and disciplinary procedures
    • notice of termination requirements
    • any applicable probationary period

    Addition entitlements can be added to these agreements, but employers typically try to only cover what they are required to include. None of the above requirements grant employees free speech. In fact, the grievance procedure typically limits what can be reported to whom and in what time frame.

    Even given the limited employee rights afforded by labour law, free speech in the workplace is one area where the UK could actually provide more worker protections than the US. The Equality Act of 2010 prohibits discrimination (direct or indirect) against employees for their religion, religious belief and philosophical belief (or lack of beliefs). In certain contexts, “belief” may include political beliefs if those beliefs are:

    • beliefs and not an opinion or viewpoint
    • genuinely held
    • related to a weighty and substantial aspect of human life and behavior
    • of a certain level of cogency, seriousness, cohesion and importance
    • worthy of respect in a democratic society, but need not "allude to a fully-fledged system of thought"

    The other protections afforded by the Equality Act actually limit free speech where the below characteristics are concerned:

    • age
    • disability
    • gender reassignment
    • marriage and civil partnership
    • pregnancy and maternity
    • race
    • sex
    • sexual orientation

    For example, if an employee has a sincere belief that cannot be expressed without discriminating against, harassing or victimizing someone with a protected status, then the speech is not permitted. 

    Outside of the very limited protections for employees, employers can pretty much discipline, fire, demote or transfer employees for anything they say.

    Free speech outside of the workplace

     Outside of work, freedom of speech is limited in the UK (as it is with most countries). Although Article 10 of the Human Rights Act (incorporated from the European Convention) “guarantees” freedom of expression from the government, there is a lengthy list of exclusions that almost bars citizens from saying anything that might be perceived as rude. They aren’t permitted to say anything indecent, grossly offensive, threatening, abrasive or insulting that might cause harassment, harm or distress, or cause a breach of the peace. Citizens also can’t use obscenity, corrupt public morals or outrage public decency - all of which is subjective. So even outside of the workplace, free speech is not all that free.

    Free speech on social media

    Despite the realities of the law, many employees have an expectation that they will be able to freely express their opinions at work. At the very least, they believe that they should be able to say whatever they want on their own time on their own social media accounts. They are often shocked to find out that isn’t the case.

    Employers may develop policies around comments employees have made online, even beyond illegal speech like harassment. While employees in some countries like the US might have the right to complain to fellow workers online about their pay, hours or other working conditions, they can be fired for saying anything defamatory about the company, its clients or products. Essentially, employers do not have to allow employees to cause monetary or potential monetary harm to the company.

    The UK has a history of individuals being prosecuted and convicted for making offensive comments online. While people take for granted that freedom of expression includes the right to offend, shock and disturb, that clearly is not the case. And when employees violate the law with their speech, companies may need to fire them, for appearances if nothing else. Employers have to weigh the needs of the business with the risks involved in curtailing employee speech on social media.

    HR support

    To try to avoid bad PR and criminal and civil issues, international companies like Google have to consider each country’s employment laws separately and design their policies and practices with them in mind. This can be extremely burdensome for the company and for the HR Department, particularly with HR Departments being chronically understaffed.  Several companies offer international compliance support to help companies address the various legal and cultural issues that arise. Many HRIS providers and benefits brokers now include expert HR and Compliance advice from either an in-house team or a contracted service. There are also independent HR Consultants and HR Consulting firms that provide even more specialized support. 

    John Crowley, editor at peoplehr.com, writes about HR, people management, and cloud technology. He manages the People HR blog where he tackles topics ranging from building a strong culture to navigating the treacherous waters of HR tech.

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  2. Julia Sta Romana

    Julia Sta Romana UKBF Newcomer Free Member

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    I think social media has made the issue of freedom of speech in the workplace more complicated. Before social media, most employees don't go out of their way to publicly identify themselves with the companies they work with. And their sphere of influence is limited to their community and who they interact with regularly. But with social media, it's much easier to figure out who that person works for. And everything the post can be seen and influenced by anyone.
     
    Posted: Feb 7, 2018 By: Julia Sta Romana Member since: Apr 18, 2017
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