The Bill of Rights Act 2022 and employment law: free speech implications – by Gus Baker

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:

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.

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:

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.

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 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?

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

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.