Updated: Aug 8, 2021

HERE is a paper titled ‘In Protection of Freedom of Speech’ by barrister Francis Hoar. It was commissioned by the Reclaim Party.

The report includes recommendations for employment law reforms that are intended to improve the protection for freedom of speech. The section on employment law begins at page 40 with the proposals for reform beginning at page 44.

The proposal involves protecting general opinions rather than philosophical beliefs and requires the employer to justify any dismissal that according to the employee, was due to any expression of opinion. The author breaks down the proposed reforms into 9 bullet points.

I welcome the proposals contained in the employment section of the report (I have not currently read the rest of it) and broadly agree with them. The points that cause me some concern, are the end of point 7 and point 8, which are set out below:

“(7) Is not limited to the expression of opinion but extends to any speech. Again, this avoids a judge having to determine whether something said on Twitter (for example) amounts to an opinion. The question of whether something is an opinion or of what it is an opinion about is irrelevant. A person’s speech is not a matter for their employer unless it is said within the course of employment, or if it is reasonable to restrict the expression of particular opinions outside it because it damages the reputation of the employer or it damages the relations between employees.

(8) Allows employers to discipline employees for coarse behaviour serious enough to damage its reputation, where harm to its reputation could be proved by the employer on the balance of probabilities. For example, this would allow an employer to dismiss an employee for offensive tweets sent by a sales manager on a Twitter account, where he was followed by many clients that the employer concluded would cease to trade with the employer because of his language.”

I would ask the following inter-related questions in response to the above points. Firstly, how is damage to reputation going to be determined and secondly will any regard be had to culpability for any damage to the employer’s reputation and the consequent commercial damage?

To help explain the significance of the above questions, I have formulated the following fictional scenario. It involves a dairy farmer, an employed laborer and a supermarket chain. For the last of these you could imagine any of big three, Asda, Tesco or Sainsburys but remember that the scenario is entirely fictional and I am not suggesting that these companies have acted or necessarily would act, in the way described in the scenario.

In this scenario an individual is employed by a dairy farmer as a manual laborer. For his job he interacts only with the cows, the farmer and a small number of other employees. He does not interact with the public in any way.

The laborer has a Facebook account. The account is public and has a following of 150, consisting of the laborer's close friends and family. Under the about section of the account he lists the farmer’s company as his employer. There is otherwise no mention of his employment on the account, either on his profile or any of his posts.

The laborer publishes the following post on his Facebook account:

I am worried for my children about the promotion of so-called LGBTQ rights. It is one thing for homosexuality to be decriminalised, but things have gone too far. What adults do in the privacy of their bedrooms is not my concern, but schools should only promote the traditional family. Clause 28 should be reintroduced.”

The supermarket chain is promoting what they describe as ‘LGBTQ rights. An employee of the chain, who somehow knows that the farmer is a supplier, sees the above post and complains.

The chain bring this up with the dairy farmer and state that he should give the employee an ultimatum, delete the post and agree to never express this particular opinion on Facebook or in public, failing which he will be dismissed from his employment. They will not accept the laborer simply removing the reference to his employer on his Facebook profile. In this scenario the chain are the farmer's largest customer, buying 50% of his milk.

The chain state that if the farmer does not give the ultimatum and follow through with it, they will stop doing business with him. The farmer responds by stating that the employee is a competent worker. He also states that he and the other employees only learned of this post when it was brought to their attention by the chain; they disagree with the substantive view expressed but are not distressed by the knowledge that the laborer has expressed it. This view does not affect the laborer's work or workplace relations. The chain are unmoved by this response and repeat their threat of ceasing trade if the ultimatum is not given.

How would points 7 and 8 from the report above, be applied to our imaginary scenario if dismissal occurred or was seriously contemplated? Would damage to reputation be established solely by virtue of the fact that the farmer’s customer was going to cease trade with him because of the post? Alternatively, would there be some form of quasi objective test, which would have to be met in addition to loss of trade?

The reference to ‘course’ and ‘offensive’ might suggest that the author did not attend for loss of trade to be the only measure, but this is not entirely clear. Further the last sentence of point seven does not say that the speech that would be restricted, has to be offensive.

If the author is advocating some form of test as to ‘offensiveness’ or ‘coarseness’, this would have similar problems to the final Grainger criterion, namely a belief having to be ‘worthy of respect in a democratic society’, which he rightly identifies in the report (I used the expression ‘quasi-objective’, because whilst a Tribunal would not merely be deferring to the views of the employer’s customers or clients, the test would inevitably involve a subjective assessment of the post and the imparting of value judgements).

If, however, loss of trade can be the sole measure for dismissal, this raises three related moral questions. Raising these questions is useful in determining whether employment law reform is justified. This does not mean that one has to be able to provide a comprehensive philosophical answer to the questions, to justify reforms and I do not try and provide such answers herein; philosophy is a useful guide for law making but it is designed to apply perfect logic and demand all manner of proof before a solution is accepted, whereas law making should have tangible and pragmatic aims (the same can be said of politics, as per Otto Van Bismarck's aphorism, "politics is the art of the possible").

Firstly, who is morally responsible for the farmer’s loss in our scenario if the chain ceased trading with him?

In relation to the first question, I can imagine some of the less sophisticated enemies of free speech repeat the contemptible and inane platitude, ‘freedom of speech does not mean freedom from consequence’. They may also say that the employee knew what would happen and thus is to blame and say without any sense of irony that chain is promoting tolerance.

Whilst, depending on the situation, there may be moral duties that apply to a person’s decisions when their choices and the likely consequences have been created by the immoral actions of others, it cannot reasonably be disputed that in this scenario, the chain and the complainant were the aggressors. They could have challenged the employee's view if they found it offensive. There was no reason why the employee could not have continued with his employment after publishing his remarks or if he published similar remarks in the future.

Consequently, the chain and the complainant are primarily to blame for the situation and it is right in my view that employment law should try and prevent them from successfully procuring the employee's dismissal. One can assert this without reaching a conclusion on the numerous facets that apply to this particular moral question.

The second question is whether it is morally right for the farmer to dismiss the employee in this situation. One could argue that it is, simply because he is not to blame for the choice that he is faced with; he may condemn the chain for forcing his hand, but he may believe that their threat if carried out could prevent him from paying his mortgage or supporting his family. It may also threaten the financial security of his other employees.

On the other hand, one could argue that if he dismisses the employee his is allowing immoral behaviour to succeed. The immoral behaviour being economic bullying and coercion, designed to stifle the expression of ideas the bully and coercer do not like. Furthermore, if he does not resist the chain attempting to influence the ability of his employee from expressing an opinion outside of his employment, he is by extension accepting their right to prevent him from expressing certain opinions outside of his business. This means that the chain controls not merely his commercial practices but his ability to express opinions and make statements, outside of his business. One could argue that allowing such a relationship to exist would be slavish and cowardly.

From the pragmatic perspective of law making, if the law made it clear that the dismissal of the employee in this scenario would be unlawful, the farmer could simply inform the chain of this when they put him under pressure. If the chain continued to make threats which procured his dismissal, this would probably amount to a tortious act, namely inducing a breach of a contract. The law should attempt to prevent the behaviour of the chain and the complainant in this scenario from being successful.

The third question is more general, namely whether an action that is not inherently unlawful should be justified in a free market. In a free market, why should the chain not be entitled to impose any requirements it wants (save for the commission of crimes) on its suppliers as a condition of continued trade? In a free market, why should employers not be able to hire and fire at will?

These are vast questions that I will not attempt to answer herein, although plainly there has to be some regulation of economic activity, even if this is merely to maintain a genuinely free market, such as monopolies legislation.

However, the law in England and Wales has already provided a response to the question of whether employers should be entitled to hire and fire at will, with the Employment Rights Act 1996 and the prohibition of unfair dismissal. Once the premise of unfair dismissal as a legal concept is accepted, I do not see why laws that prevent dismissal or detriment based on the expression of opinion, can be challenged on free market principles.

In conclusion, I broadly agree with the reforms proposed but I do not think that the loss or potential loss of trade, should be a good enough reason to dismiss an employee. If it is, then the contemptible practice of trying to procure the dismissal of employees based on the expression of their opinions, will continue.

I have previously suggested, in a very brief outline form, reforms to employment law, namely:

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 (I have not thought about dispensing with the 2-year qualifying period or the refusal to employ a person in the first place):

1. 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.

2. The employee is not purporting to speak on behalf of the employer.

3. The statement is not made about the employer or any individual or entity connected with them.

4. The primary intention of the communication is not to cause commercial damage to the employer.

5. 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).

6. The statement was made outside the course of employment.

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