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1. Introduction

The “Bill of Rights Bill” (the “Bill”), introduced to Parliament on 22 June this year, has the potential to have significant implications for employment law. Once tribunals and courts accept the Bill’s exhortation to give “great weight” to freedom of speech, the consequences for workplace relations may be profound.

Since the Bill’s introduction, public lawyers have made various criticisms of its inadequacies in protecting Convention rights. Most importantly, the Bill removes the requirement at section 3 of the Human Rights Act 1998 to read and give effect to legislation in a way that is compatible with Convention rights. Section 3 of the Bill replaces that interpretive duty with an instruction about how Courts should interpret convention rights, which will likely result in UK Courts interpreting the Convention in a way incompatible with the ECtHR’s jurisprudence. This is not an article weighing the merits of the Bill as a whole, but for more detail on these points, see Mark Elliot, Daniella Lock and Merris Amos.

The overall effect of section 3 of the Bill is to implore Courts to take a restrictive approach to interpreting Convention rights, save for in relation to “freedom of speech”, (a narrower concept than the right to freedom of expression under Article 10).

Section 4(1) of the Bill provides that:


“When determining a question which has arisen in connection with the right to freedom of speech, a court must give great weight to the importance of protecting the right” (emphasis added).

Section 4(2) of the Bill introduces the concept of “freedom of speech”, defining it as:


“the Convention right set out in Article 10 of the Convention (freedom of expression) so far as it consists of a right to impart ideas, opinions or information by means of speech, writing or images (including in electronic form)”.

So, the right to “receive” information, included in Article 10 as part of freedom of expression, is not included in the Bill’s definition of freedom of speech.

Section 4(3) of the Bill excludes criminal cases, breach of confidence claims and immigration matters from the “great weight” requirement at s4(1). But there is no exclusion for claims arising in an employment context.

The duty on Courts to give “great weight” to freedom of speech is exempt from the prohibition on expanding the rights conferred under the Convention (section 3(3) of the Bill). The Bill’s explicit aim is to make Convention rights harder to enforce, save in relation to the right to freedom of speech in certain circumstances, which will be fortified.


2. The scope of the “great weight” requirement


The requirement to give “great weight” to freedom of speech at section 4(1) of the Bill is deliberately drafted to be widely applicable. All that is required for the “great weight” requirement to apply is a Court or Tribunal considering a question “which has arisen in connection with the right to freedom of speech”.

Note that there is no requirement that the Court or Tribunal is deciding a question about the speech itself (ie whether it is defamatory). The “arisen in connection” test is much broader, and will encompass situations in which the consequences of the speech form the issue before the Court.

That is unsurprising considering the reason for introducing the provision, as explained by the Lord Chancellor, Dominic Raab MP, to the Daily Mail:

“Effectively, free speech will be given what will amount to ‘trump card’ status in a whole range of areas.…I feel very strongly that the parameters of free speech and democratic debate are being whittled away, whether by the privacy issue or whether it’s wokery and political correctness” .

The note released by the Government describing the Bill is unambiguous about the intended wide scope of the new provision:


“[The Bill] strengthens the right to freedom of speech. We are attaching greater weight to freedom of speech, defined as the exchange of ideas, opinions, information and facts, as a matter of utmost public interest, and widening the responsibility for attaching this greater weight to all public authorities”.

Tribunals frequently consider questions that arise “in connection” with free speech, as defined in the Bill. When an employee is dismissed for their speech, that action necessarily interferes with their right to freedom of expression (see Briggs J (as he then was) in Smith v Trafford Housing Trust [2013] IRLR 86, [2012] EWHC 3221 (Ch) at ¶72). There is every reason to think that the “great weight” test will apply in employment contexts.


3. Free speech and the workplace: the current position

The right to freedom of expression under Article 10 has, to date, had a limited impact on case law in the employment sphere. In Game Retail Ltd v Laws [2014] Info. T.L.R. 369, [2014] 11 WLUK 18 (“Game Retail”) the EAT held that “generally speaking, employees must have the right to express themselves, providing it does not infringe on their employment and/or is outside the work context”.

In British Waterways Board (trading as Scottish Canals) v Mr David Smith UKEATS/0004/15/SM, Mr Smith had exchanged his ideas and opinions via his Facebook wall, on which he had written “why are gaffers such pricks, is there some kind of book teaching them to be total wankers” and “ha what joy, 2 sleeps til back to my beloved work NOT”, amongst what he described as jokes about being drunk on duty.

The EAT accepted, on the basis of Game Retail that there was “no need for special rules” in respect of cases involving Facebook posts (¶2). That is surprising, considering that employees posting on Facebook are highly likely to be exercising their Convention rights under Article 10, demanding special consideration.

No consideration was given to Mr Smith’s Article 10 rights before the EAT reversed the ET’s decision that the dismissal had been unfair and substituted its own judgment that the dismissal must have been fair.

In Smith v Trafford Housing, Briggs J considered it was “of course” correct that an employer may restrict or prohibit freedom of expression at work, or even “in a work related context” (¶66).

It is far from clear that the approach above is correct on the law as it stands. The ECtHR has held that the state has a positive obligation to safeguard freedom of expression even between private parties: see Fuentes Bobo v Spain (39293/98) in which an employee had been dismissed by a TV station because of his criticism of management during a radio programme. The dismissal was found to be a disproportionate response to the exercise of freedom of expression.

There is currently little satisfactory UK authority which analyses and applies the case law of the ECtHR in determining what type of speech from employees (in or outside work) is protected, and considering how Tribunals should exercise their positive obligation to safeguard freedom of speech, even where both parties are private entities. As Virginia Mantouvalou and Paul Wragg have noted, Courts and Tribunals have been reluctant to actively protect speech in or around the workplace.

Indeed, Employment Tribunals often do not engage in the substance of Article 10 when deciding whether a dismissal was fair. See Gibbins v British Council: 2200088/2017, in which the claimant commented on a picture of Prince George: “White privilege. That cheeky grin is the (already locked-in) innate knowledge that he is Royal, rich, advantaged and will never know any difficulties or hardships in life. Let’s find photos of 3yo Syrian refugee children and see if they look alike, eh?”. The ET dismissed the claim without any reference to Ms Gibbins’ Article 10 rights.

The “great weight” test may well provoke a change of approach. More litigants will assert Article 10 rights and insist that they have a “trump card” when doing so.


4. “A great weight”


What it means to give freedom of speech a “great weight” may not be easy for courts to determine. Few statutory provisions contain an adjective imploring the Court to weigh one factor higher than others. Any ambiguity of the phrase will drive courts to seek as an aid to interpretating the statements of ministers during the passage of the Bill, as per Pepper v Hart [1993] AC 593. If the Lord Chancellor repeats his exhortation that free speech should be a “trump card” in Parliament, the effect will be powerful.


5. Questions arising “in connection” with free speech


Unfair dismissal

When a Tribunal is deciding whether someone has been unfairly dismissed because of their speech (inside or outside work), the Tribunal must consider whether the employer’s decision to dismiss was reasonable or unreasonable and make that determination “in accordance with equity and the substantial merits of the case” as per section 98(4) ERA 1996. Tribunals must consider whether relevant Convention rights are engaged, and whether a particular outcome might breach them when considering unfair dismissal cases, even though the primary test to be applied is at section 98(4) ERA 1996 (see Page v NHS Trust Development Authority [2021] ICR 941 at ¶37, ¶102 and 103.

The question at the heart of unfair dismissal cases: whether reasonable for an employer to dismiss a claimant, is plainly one which arises “in connection with the right to freedom of speech” where the dismissal is because of the employee’s exercise of their right to free speech. Article 10 is engaged in circumstances in which an employee exercises a right to freedom of expression, and is disciplined for it (see Smith v Trafford Housing).

If the Bill is enacted in its present form, if an employee takes to Facebook or Twitter to complain about their employer, or express some view about politics or religion or science, in deciding whether they were unfairly dismissed for doing so the Employment Tribunal would have to give “great weight” to their right to freedom of expression.

The distinction suggested by Eady J in Game Retail, that freedom of expression is diminished where it “infringes” on an employee’s employment, may be hard for tribunals to maintain if they are giving “great weight” to freedom of speech.

The definition of free speech in Section 4, reflecting the Convention, explicitly defines it in terms of the “exchange of…opinions, information and facts”. There is no suggestion that these opinions, information and facts cannot be about a workplace or its management. This will pose problems. When does free speech in the workplace turn into insubordination? Can an employee who internally criticises their manager rely on their right to free speech?


Protected disclosures


The consequences could go further. If employees “whistleblow” to the media or other than to their employer (ie on Facebook or Twitter) and wish to assert that in doing so they were making a protected disclosure within section 43G or 43H of the Employment Rights Act 1996, the question arises whether it was reasonable for them to make the disclosure in that way doing so (s43G(1)(c), s43H(1)(e) ERA 1996).

These are plainly questions which arise in connection with the right to freedom of speech. If that is right, then in determining reasonableness for the purposes of s43G and 43H, the Court will have to give “great weight” to employees’ freedom of speech. The provisions at s43G and 43H of the Employment Rights Act 1996, currently narrowly construed, may be able to be relied on more easily after the passage of the Bill.

How would a civil servant who seeks to publicly whistle blow on the legality of the government’s actions fare under section 43G and 43H if free speech is a “trump card” when deciding whether their actions were reasonable?


Harassment


In determining whether unwanted conduct constitutes unlawful harassment under section 26 EqA 2010, tribunals must consider “whether it is reasonable for the conduct to have that effect”, as per section 26(4)(c) of the Equality Act 2010. That question, assessing the reasonableness of conduct, may well be one which arises in connection with the right to freedom of speech, in circumstances in which the unwanted conduct is speech.

Individuals who express forthright views related to fellow employees’ protected characteristics may be insulated from harassment claims if their expression of those beliefs is protected and given “great weight” under the Bill.

It is worth noting that section 4(2) of the Bill expressly refers to the Convention Right of freedom of expression, and it is settled law that this right extends to: “not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population” (Handyside v UK (5493/72) ¶49)

Employees who make comments which “offend, shock or disturb” others will presumably rely on their Article 10 right to do so, and justifiably insist that it must be given “great weight” when a Tribunal is assessing whether or not that conduct constituted harassment.

It is easy to envisage circumstances in which the Equality Act 2010 is put on a collision course with individuals’ newly fortified rights to free speech. How that conflict will be resolved is unclear.


Privacy and anonymity orders


Judgments in all employment tribunal cases are now published online, with participants and parties’ names Google-able. Despite the manner of the interference with the Article 8 rights of individual litigants’ changing, recent authorities are clear that the court must give strong regard to open justice (see Fallows v News Group Newspapers Ltd [2016] ICR 801; X v Y [2021] ICR 147; TU v ILA SPA Limited UKEAT/0236/20/VP).

Courts and Tribunals are frequently required to balance Article 10 rights, and the open justice principle, with Article 8, the right to privacy, when deciding whether hearings should be held in public or whether privacy or anonymity orders should be made.

The test that is applied in these circumstances is that of Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, see paragraph ¶17:


“First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each”

That balancing exercise may be thrown off by the Bill. As the Lord Chancellor has explained, its purpose is:


“to [make] sure that when we balance rights, whether it’s the right to free speech and the right to privacy or other rights, we make sure that the greatest overriding importance and weight is attached to free speech” .

Lord Steyn’s pronouncement above that “neither article has …precedence over the other” cannot survive the passage of the Bill with section 4 in its current form. It would not be right to say that “neither article has as such precedence over the other” if as a matter of domestic law, only the right to freedom of expression must be given “great weight”.


Justification


Article 10 rights are, of course, qualified by Article 10(2). Infringements on individuals’ exercise of free speech may be justified if:


“prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

In Crisp v Apple Retail (UK) Ltd, the ET gave cursory consideration to the issue of justification under Article 8(2). The Claimant was dismissed for comments on his private Facebook page, including:

“once again fuck you very much work”
One referring to his “jesusPhone”
“MobileMe fucked up my timezone for the third in a week and woke me up at 3am? JOY” [MobileMe was an precursor to Apple’s icloud]

The ET accepted that the right to freedom of expression applied, but simply stated that “we find the Respondent’s conduct in limiting this right was in order to protect its reputation… we also find this was justified in the circumstances”.

It is plain that this ET (like that in Gibbins) did not give “great weight” to the claimants’ rights to freedom of expression.

The intention behind Section 4 is to give greater weight to Article 10 than other Convention rights, and a more extensive right to freedom of expression in the domestic law than under the Convention. Decisions of the ECtHR on justification under Article 10(2) will thus plainly not bind the domestic Courts when considering the fortified right to freedom of expression in domestic law.

Employment Tribunals plainly will not be giving “great weight” to freedom of expression if they assume employers can necessarily dismiss for speech because of some hypothetical threat to their reputation (as in Crisp).

Difficult questions will emerge: to what extent can employees contract out of their right to free speech? Can employers restrict speech via policies or training? In Crisp, Apple had a policy regarding how employees should discuss its products. Is some speech (eg regarding politics and religion) to be more jealously protected than other speech, such as employees expressing views about their work? If so, should Courts judge how valuable the speech is when determining if an infringement of the right is justified? How much does the identity of the employer matter? Can employers take a corporate position on political or religious issues and require their employees to toe the line?


6. The impact


This article has barely scratched the surface of the impacts that section 4 of the Bill may have on employment law, if passed in its current forms. There are barely any areas of workplace relations, collective or individual, that do not involve “free speech” in some regard.

Judges, disquieted at being told to prioritise one Convention right over another, may be tempted to take a narrow approach when applying section 4. It will be argued that courts already attach great weight to free speech, and so the provision has little operative effect. However, that logic is limited. If Parliament legislates with the explicit intention of changing the current balance between convention rights, then courts will find themselves compelled to reflect that in their judgments.

A meaningful right to free speech means protecting opinions and ideas that others (including their employers) may find distasteful, disruptive or disreputable. The Bill invites Courts to expand that right. How employment tribunals will approach giving “great weight” to employees’ free speech rights is unpredictable. But if the Bill passes in its current form, we can expect significant changes. Some of those will be squarely in line with the Government’s stated intentions. Vocal opponents of “wokery”, as described by the Lord Chancellor, will have extra protection in their employment. But the law has not just been drafted to protect those with whom the government agrees. The potential for unforeseen consequences abounds.

About the author:

Gus Baker is a barrister at Outer Temple Chambers, specialising in employment law. He is ranked by Chambers & Partners and Legal 500 as a “rising star” and an “up and coming” junior barrister.

(Suggested citation: G Baker, ‘The Bill of Rights Act 2022 and employment law: free speech implications’, UK Labour Law Blog, 6 July 2022, available at https://uklabourlawblog.com/)