Recently, there has been an increase in disciplinary action and dismissals as employees express their support for different sides in the Israel/Gaza conflict. The ongoing conflict has sparked heated discussions both in person and online. Even social media posts discussing the conflict have become grounds for disciplinary measures. This raises questions about the freedom of expression in the workplace.
The complexity of workplace expression
Employers find themselves grappling with profound questions related to religious and
philosophical beliefs, particularly in the context of the Israel/Gaza conflict. Decisions on what views can be expressed carry the inadvertent risk of unintentional bias towards one side of the conflict.
The risk to employers is twofold; firstly, the expression of employees’ viewpoints may
potentially amount to harassment of colleagues or third parties, resulting internal conflict, disciplinary offences and legal action. On the other hand, adopting a stance that restricts employees from expressing their views could trigger claims of discrimination and dismissal. The trend of employees facing disciplinary measures or job loss due to their social media commentary on the conflict is on the rise.
Real-world cases
There are several real-world cases, for example,
- Ofcom’s Online Safety Director at was suspended for private Instagram posts describing Israel as an “apartheid state“
- A tube driver was suspended for leading a “free Palestine” chant on a train.
- The BBC has sacked an employee whose posts were reported as anti-Semitic
Such incidents bring to light the challenges employers face in managing expressions that may compromise their impartiality or harm their reputation.
Balancing freedom of expression
While individuals generally have the right to express their personal views, the boundary becomes less clear within the workplace. Employers may take steps to manage objectionable expressions, invoking the fundamental right to freedom of expression. However, interference with this right invites scrutiny, potentially leading to disputes within the workplace and in Employment Tribunals.
Guidance from legal precedent
Helpfully, a recent case, Higgs v Farmor’s School, offers guidance on evaluating the
proportionality of disciplinary action for expressing religious or political views. It says that employers should assess the importance of their objectives, consider less intrusive alternatives, and weigh factors such as content, tone, extent, and the impact on the rights of others.
Individual assessment in each case
Each situation is unique, requiring a careful evaluation before taking disciplinary action. Gray V Mulberry Company (Design) Ltd is an EAT case showing us that to qualify for protection, an employee’s views must be genuinely held, substantial, compatible with human dignity, and not conflict with others’ fundamental rights.
A five-part test for protection
Gray v Mulberry Company establishes a five-part test to determine whether a belief qualifies for protection from discrimination under the Equality Act 2010. It emphasises the belief’s genuineness, substantial impact on human life, compatibility with democratic values, and avoidance of conflict with others’ fundamental rights.
Conclusion
In navigating the complex landscape of workplace expression amid the Israel/Gaza conflict, employers must tread carefully, considering the nuances of each case.