Wake-up call: Balancing freedom of speech with an equal workplace

Staff have the right to work in a safe environment, and an employer's obligation to maintain this may include online exchanges, says Jo Martin

The problem

As a company we are all for freedom of speech, but we are also aware that we need to ensure an equal and fair workplace. In this age of endless expressions of opinion on social media, how should managers tackle staff sending offensive tweets, posting sexist remarks on Facebook, or arguing about differing views on equality?

The law

The Human Rights Act 1998 gives individuals the right to freedom of expression in Great Britain. In situations likely to incite violence, abuse or discrimination, however, the expression concerned can be regulated by the authorities, potentially through criminal charges. In a nutshell, individuals have the right to publicly offend, annoy and upset others, save where their behaviour is criminal, defamatory or harassing.

In the workplace, there are additional ways in which freedom of speech can be lawfully limited. Under the Equality Act 2010, employees have the right not to suffer discrimination or harassment due to their race, gender, disability, age or sexual orientation. Harassment is defined as unwanted behaviour relating to an individual's race, gender, age or orientation which creates an offensive, intimidating, hostile or degrading environment for that individual or simply violates their dignity.

Employers are required to ensure their employees are protected accordingly and enjoy a safe workplace.

Expert advice

As an employer, you must balance the individual staff member's right to freedom of expression with confidentiality, respect for colleagues, and consideration for customers. You are entitled to limit freedom of expression of staff as necessary to ensure that your business functions well and that staff and customers are treated with dignity.

‘Banter’ can be well-received, if carefully judged, but can often fall within the definition of workplace harassment. For example, I oversaw a substantial settlement for a chef who had suffered months of racist and anti-Islamic harassment in the kitchens of a renowned restaurateur, who was otherwise headed towards the tribunal in a blaze of publicity.

If expressions made outside of the workplace come to your attention, it would be prudent to investigate further. Consider whether offence has been or is likely to have been caused, or if other elements of your business have been put at risk. From that point on, follow a normal disciplinary process, applying the principles of reasonableness and justice as you go.

Remind staff that while you welcome healthy communication, all of the team must be treated with dignity and harassing behaviour will not be tolerated. This should allow you to straddle the gap between freedom of expression and protection against offence as effectively as possible, while ensuring staff feel they can be themselves at work. In hospitality, individuality is vital to give your business its warmth and to encourage repeat custom.

Checklist

• Educate and train staff on your anti-harassment and equality policies
• Be explicitly clear that hate speech will never be tolerated
• Keep up-to-date with equality laws, as they affect both staff and customers, to ensure your business is (and is seen to be) progressive and inclusive
• Have a social media policy, ensure it fits your business and train staff on it so that everyone appreciates and understands what is expected of them

Beware

Liability for harassment in your workplace can lead to tribunal action, bad publicity for your business and financial compensation awards for the affected employee in the tens of thousands of pounds â€" more still if the treatment leads to the loss of their job or mental health conditions.

Contact

Jo Martin is a senior lawyer at Simons Muirhead & Burton

joanna.martin@smab.co.uk
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