In a previous ARTICLE, I expressed concern about the final Grainger criterion, namely being worthy of respect in a democratic society, following the case of Maya Forstater v CDG Europe. This criterion was in my view being applied in a vague and arbitrary way, with the result that whether the expression of a philosophical belief was protected under the Equality Act 2010, was dependent on value judgements by Employment Tribunals.
Some encouragement can now be found in the decision of the Employment Appeal Tribunal, see HERE. The Claimant’s appeal against the preliminary ruling that her ‘gender critical beliefs’ were unworthy of respect in a democratic society, was successful. The case was remitted back to the Employment Tribunal for them to determine whether the Claimant was unlawfully discriminated against due to her beliefs.
At paragraphs 70 and 82, Mr Justice Choudhury stated that only beliefs that are, ‘akin to Nazism’, ‘totalitarian’ or which constitute ‘the gravest form of hate speech’, ‘incitement to violence’ or are ‘antithetical to convention principles’, should be deemed unworthy of respect in a democratic society and thereby unprotected by the Equality Act 2010.
Mr Justice Choudhury confirmed that the requirement of being worthy of respect in a democratic society was based on article 17 of the ECHR 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”.
There was an implied rebuke against the original decision for analysing the substantive merits of the beliefs and for assessing the Claimant as dogmatic in her adherence to her beliefs, neither of which should have been relevant in deciding whether the belief qualified for protection under the Equality Act 2010.
This judgment is plainly a marked improvement in the protection of free speech within the context of employment law.
However, there is still scope for ambiguity in interpreting ‘totalitarian’ and ‘the gravest form of hate speech’; further it would be preferrable if individual opinions that were unrelated to the person’s employment, received protection under employment law.
My outline proposal for a new law creating greater protection for free speech for employees, would be as follows:
Any communication, or series of communications, that meets the following criteria would be protected; any dismissal in response to such communication(s), would automatically be regarded as unfair.
It is lawful, i.e. not in breach of the criminal law or gives rise to any civil liability. When such a statement is made, it will not always be clear that the statement is unlawful, pending a prosecution or civil action. Consideration could be given to permitting the employee to be suspended until liability is determined or allowing the employer to dismiss, if they can show that they reasonably believed the statement was unlawful.
The employee is not purporting to speak on behalf of the employer.
The statement is not made about the employer or any individual or entity connected with them.
The primary intention of the communication is not to cause commercial damage to the employer.
The communication does not state that the employee will fail to perform their duties to the best of their ability and in accordance with their contract of employment (I would like to have said ‘imply’, as well but I fear this would be exploited by employers and Tribunals with politically correct leanings).
The statement was made outside the course of employment.