EMPLOYMENT LAW AS A TOOL OF IDEOLOGICAL CONTROL BY THE PARASITIC MANAGERIAL ELITE
- josephchiffers
- 19 hours ago
- 10 min read
Article by Joseph Chiffers
The purpose of this article is to argue that the current employment law regime:
1. Allows for the exertion of ideological control of employees by employers.
2. Damages small businesses, which helps large corporations who compete with these small businesses. This in turn has wider sociological effects.
Ideological control
Most employment contracts contain clauses that prohibit the employee from bringing the reputation of the employer into disrepute. Even in the absence of such a clause, such an obligation is usually implied pursuant to common law. This is the result of the evolution of the implied term that requires the employer and employee to have mutual trust and confidence.
It is only relatively recently that such clauses have been used to dismiss employees for the expression of controversial opinions. The prevalence of social media has made this occur more often, with malicious third parties trying to pressure employers to dismiss their employees for expressing opinions they dislike.
If an employee faces dismissal for expressing an opinion, they can try to argue that dismissal would be unfair because it would not cause the employer reputational damage. This, however, would not be based on any positive defence of free speech enshrined in law. Further, there is no right to bring an unfair dismissal claim unless an employee has been employed for at least two years.
They could try and avail themselves of the Equality Act 2010, which protects ‘philosophical and religious belief’ under section 10.
To be protected a belief must satisfy the GRAINGER criteria, listed in paragraph 24 of the linked judgment, namely, .
(i) The belief must be genuinely held.
(ii) It must be a belief and not……an opinion or viewpoint based on the present state of information available.
(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.
(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others
Before the Grainger criteria became established, the same criteria were considered and approved in a previous case. I think it is worth quoting the reservations about these criteria expressed in a dissenting judgment:
“I have to say that I find these qualifications rather alarming, especially if they are to be applied to religious beliefs. For the reasons already noted, the court is not equipped to weigh the cogency, seriousness and coherence of theological doctrines. Anyone who feels in any doubt about that might refer to the hundreds of pages of the law reports devoted to 16 years of litigation, in mid-Victorian times, as to the allegedly "Romish" beliefs and devotions of the incumbent of St Alban's, Holborn (the litigation, entitled Martin v Mackonochie, starts with (1866) LR2 A & E 116 (Court of Arches) and terminates at (1882) 7 PD 94 (Privy Council sitting with Ecclesiastical Assessors)). Moreover, the requirement that an opinion should be "worthy of respect in a 'democratic society'" begs too many questions. As Mr Diamond (following Mr Dingemans) pointed out, in matters of human rights the court should not show liberal tolerance only to tolerant liberals.”[1]
The Equality Act was shown to be an extremely weak defence in the case of Richard Page (see HERE - para 72); essentially the employer was able to argue successfully that they were dismissing Mr Page for expressing his belief and not for holding it.
However, the position improved for employees following the FORSTATER JUDGMENT. The Employment Appeals Tribunal held that by opining on whether the Claimant’s belief needed to be expressed in a particular way, the Employment Tribunal was making an implicit value judgment as to the legitimacy of the belief.[2]
Nonetheless, the entitlement of an employee to express their protected belief without fear of dismissal or sanction, is not clearly defined in Forstater. There was reference to the caveats set out in articles 9(2) and 10(2) of the ECHR being applied to enable the restriction of beliefs that would otherwise be protected by the Equality Act[3] (i.e. when freedom of thought, belief and religion and freedom of expression can be restricted).
These caveats are very widely drafted and thus reliance on them makes it difficult to predict when the expression of a belief may be protected.
Further, the decision creates an implicit two-tier system of protected beliefs; beliefs that are “offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech” are protected beliefs for the purposes of the Equality Act, but the same Act will be less likely to prevent their restriction than beliefs which are less controversial.[4]
The aforesaid descriptions are subjective and in practice it is the ‘others’ who chose to make the claim that the belief is offensive etc. Consequently, it remains equivocal as to when the expression of a protected belief can result in dismissal or other sanctions against an employee without them having redress under the Equality Act.
Additionally, there remains ambiguity as to whether a belief will acquire the protection of the Equality Act in the first place by satisfying the final Grainger criterion, i.e. whether such belief is considered worthy of respect in a democratic society.
For instance, the Employment Tribunal in Page opined that Christianity was unworthy of respect in a democratic society, in so far as it regarded homosexuality as a sin and homosexual relationships as inferior to married heterosexual relationships[5]. This part of the decision is likely to be regarded as wrong, following the analysis in Forstater of when a belief is deemed unworthy of respect in a democratic society. In any event an Employment Tribunal is not bound by the decision of another Employment Tribunal.
Forstater states that:
“In our judgment, it is important that in applying Grainger V, Tribunals bear in mind that it is only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society.”[6]
It is unclear whether the advocation of ‘Nazism’ relates to the political ideology of national socialism or beliefs about a specific political party i.e. the NSDAP. Given that support of political parties is not per se covered by article 10 of the Equality Act[7], one would infer that it is the former. It may that the EAT was referring to philosophical beliefs, which were held by or being imputed to, the NDSAP, other than national socialism, but if so it has not identified them.
The reference to ‘totalitarianism’ also requires elucidation. Would this mean that the philosophy of Geovani Gentille[7.5] is not protected? According to Karl Popper[8], the philosophies of Marx, Plato and Hegel should be regarded as totalitarian and thus not protected.
The word totalitarian is commonly understood to refer to the sacrificing of the individual’s needs for the needs or perceived needs of the community in extremis. Yet this is inevitably a subjective matter and one that involves an underlying philosophical debate, i.e. when does the aforesaid sacrificing amount to an unacceptable infringement of the rights of the individual (putting aside the basis for asserting both individual and community rights)? The use of the word ‘totalitarian’ as an insult does not assist in resolving the philosophical debate and in any event, Employment Tribunals are not an appropriate forum for philosophical debate.
Clarity is not provided by the EAT’s reference to ECHR article 17 which states “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
It would appear that the advocating of policies as part of a philosophical belief, which if implemented would be deemed to infringe the ECHR, could potentially be protected under the Equality Act.[9].This is not entirely clear however and the scope for advocating non-compliant ECHR beliefs is certainly not clear. Adopting a literal and logical interpretation, article 17 should only relate to acts and not the expression of beliefs. Therefore, the mentioning of it in this context only serves to equivocate.
In conclusion, the Equality Act provides some protection against the exertion of ideological control by employers, but it is wholly unsatisfactory in this regard and there are plainly numerous examples of employees being subject to ideological control.
This may come directly from the employer, or third parties may pressure the employer to impose sanctions or dismiss their employees as a result of opinions they have expressed.
The suppression of opinions that are not part of a religious or philosophical belief does not give rise to any claim under the Equality Act. Yet the suppression of such opinions amounts to a form of ideological control where the reason for their suppression is the contravention of a particular ideology.
It would be possible to develop a legal buffer against such ideological control that was value free. My nascent proposal, see HERE, seeks to focus on the effect on the business rather than making any value judgement about the employee’s belief.
The Damage to small businesses
In the case of Noah v Desrosiers[10] a Muslim woman applied for a position in a hair salon. She was refused the position because she always wore a headscarf for religious reasons, yet the salon owner wanted the hairdressers in the salon to display their hair. The idea being that attractive hair on the hairdressers would entice customers.
The Employment Tribunal found that this policy amounted to indirect discrimination and awarded the applicant £4000 (back in 2008) for ‘injury to feelings’ – there was no financial loss and ultimately nobody was offered the position.
‘Indirect discrimination’ is where there is a practice, criterion or policy in place that applies equally but has an unfavourable effect on an individual because of their a protected characteristic. An example would be the wearing of a hard hat on a construction site, which applies to anyone entering the site but affects Sikhs in particular, who would wish to wear their religious turban.
The policy may be indirectly discriminatory but justified, if it amounts to a proportionate means of achieving a legitimate aim. In Noah the Tribunal decided that the policy was unjustified because there may have been other options available for achieving the relevant aim, although based on the report available they do not appear to have identified the alternatives.
Further, the concept of ‘indirect discrimination’ is a misnomer, as discrimination by definition requires conscious decision making. In so far as this concept has any coherent philosophy behind it, it is one of hyper-individualism and meritless egalitarianism, whereby a small business owner who has taken financial risks and has invested time and money into a business, has to structure their business around the ‘protected characteristics’ of employees, workers or mere potential employees and workers (as opposed to the employees etc having to fit in with the business), who have played no part in the establishment of that business.
Compliance with the Equality Act represents a relatively small cost for large corporations, who usually embrace the ideology behind it in any event. For a small business however, the Act could pose a serious threat.
In a wider context, the Employment Rights Act 1996 and in particular, the fact that legal costs for defending claims are not normally recoverable in the Employment Tribunal and the obligation to provide maternity pay, will represent a vast cost for small businesses. It may be the case that these costs deter some individuals from establishing a business or from taking on employees.
It has been estimated that the watering down of amendments to the Employment Rights Act, including the scrapping of an amendment that would have allowed an employee to bring an unfair dismissal claim from day one (currently 2 years, see above) has saved businesses 4bn annually.[11]
However, the current employment law regime does more than damage small businesses financially; it has larger sociological effects by expanding the power and size of the managerial elite as described by James Burnham[12] and Samuel Francis[13], including by creating a ‘human resources’ profession.
One particular effect may be that a greater percentage of the population will work in large corporations that share the ideology behind legislation like the Equality Act, as small business cannot survive the same. Such corporations will then be in a greater position to exhibit ideological control over a greater number of employees as described in the first section, which makes it more difficult for anti-egalitarian ideologies to proliferate.
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[1] (Williamson) V Secretary of State for Education & Employment – [2005] UKHL 15, paras 59 and 60. Williamson concerned a belief in corporal punishment and whether such belief was protected under article 9. Lord Walker’s concerns have proven entirely justified
[2] Para 85
[3]Ibid para 79. There is a relationship between the ECHR and the EA, as UK Tribunals are bound to follow ECHR jurisprudence. The Grainger criteria are based on a consideration of articles 9 and 10.
[4] Ibid para 79
[5] HERE @ PARA 48. The linked appellate judgment does not deal with this point as it was an opinion expressed obiter dictum i.e. it was not an essential ingredient of the decision.
[6] Ibid para 79 – the EAT also refer to ECHR article 17 which states “
[7] Grainger Op Cire para 28
[7.5] - the Philosopher who influenced Benito Mussolini - see, e.g. The Theory of Mind as Pure Act 1922
[8] ‘The Open Society and its Enemies’ –1945 – Routledge 2005. Popper’s philosophy appears to have a significant influence on the modern liberal states. Popper was a professor and mentor to George Soros who appears to have a significant influence in immigration policy.
[9] See para 22 of Grainger and the reference to the case of R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246 – from which the dissenting judgment was cited earlier. This case involved a judicial review by a number of schools who wished to use corporal punishment as a disciplinary measure. The indication was that a religious belief that corporal punishment can be used within the family would be protected by the ECHR and thus, one can infer, the EA.
[10] Employment Law Brief 861 – Sept 2008
[11] https://www.peoplemanagement.co.uk/article/1944693/workers-rights-act-changes-cut-business-costs-4bn-government-estimates
[12] The Managerial Revolution 1941 – Lume 2021
[13] Leviathan & It’s Enemis – published posthumously in 2016 – Washington Summit
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