“Free speech”… “free speech”… “free speech”… the political debate on freedom of speech in both the UK and overseas is all over the news, politics and social media at the moment.
Lloyds Bank’s decision to permit an obviously political set of statements in a recent widely distributed newsletter has brought the issue to members’ workplaces and the one in which most of our members work.
This newsletter doesn’t aim to pour petrol on the flames: we want to draw to your attention the complexity and real world implications of these issues and the dangers in permitting political/religious debate at work.
Where We Stand
We’ve had a significant influx of new members in recent years from outside banking. Most have joined us from other trade unions, concerned their views on political matters will not align with the views of their former representatives and that they would not receive proper protection.
BTU has no political viewpoint; we’re entirely apolitical and are concerned only with the need to defend all our members’ rights under the law, irrespective of ethnicity, religious belief or colour and irrespective of which side of political debates their views might fall. Our commitment to political and ideological neutrality will not change.
Near the top of our list of priorities is defending free speech in a world in which intolerance of other people and their views is rampant.
What is Free Speech
The English novelist George Orwell famously said: ‘If liberty means anything at all, it means the right to tell people what they do not want to hear.’ That quote sums up the essence of free speech. The right is deeply embedded in the fabric of human society and is a central tenet of democracies. To state the obvious, freedom of speech is one characteristic that differentiates the Western European social democracies from dictatorships.
In UK law, the right to freedom of expression is set out in Article 10 of the European Convention on Human Rights and reflected in domestic law in the Human Rights Act 1998. In respect of freedom of speech, one objective of the Human Rights Act is to protect an individual’s right to hold and express personal views freely, without government interference, whilst recognising that individuals also have a duty to behave responsibly and respect the rights of others. When disputes arise, it inevitably falls to courts to form a view on whether individuals have behaved reasonably.
Importantly, as the Judge in the case of Handyside v UK pointed out, freedom of expression “is applicable 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”.
Free Speech In The Workplace
So the law protects freedom of speech but it quickly comes into conflict with other laws when employees voice their views at work. Why is that?
Under UK law employers have well-recognised commercial and reputational interests. They do not want their employees doing and saying things that could have adverse effects on their businesses.
Employees enter into contracts that have clear obligations that are express i.e. written or spoken. But there are also what are called implied terms that are not written down but are taken as read in everyone’s contract. These ‘implications’ can arise in different ways and include: the duty of trust and confidence (not to behave in ways that undermine the employer’s ability to trust the employee); the duty of fidelity which requires that the employee acts in good faith and the duty of confidentiality.
And to add to these demands if an employer was to dismiss an employee the odds can be stacked against the employee because of the way unfair dismissal law works. So employees can be vulnerable to unfair treatment and we will provide more factual advice in a newsletter next week.
BTU has taken a number of free speech cases and in one case from some years ago we won an Employment Tribunal where Lloyds had sacked a Bank Manager for posting on Twitter about the then Calais migrant riots. Currently, we have an important non-Bank case for an engineer who was dismissed by the large engineering firm Babcock International for commenting very innocently on a company run blog about the lack of women engineers. No reasonable person could have been offended by what he said. We will win this Tribunal case.
The main issue in the Babcock case is that the employer set up the site and encouraged employees to post. When organisations do that it is only a matter of time before there is trouble!
In Summary
Employers should not encourage employee groups that are going to foment trouble by involving themselves in expressing views that are matters of political or religious controversy in the workplace. However their activities and comments are dressed up trouble will follow as competing groups with directly opposing ideologies come into conflict. And if you’re a commercial organisation like Lloyds whose customers embrace the whole of society it does not make sense to strike provocative poses with superficial statements.
And it’s equally foolish to encourage political debate amongst employees. Amongst any group there will be diverse views held sincerely and in some cases strongly and discord won’t be far behind! Giving one political group a privileged position to proclaim its views will only ‘work’ if every group gets the same chance and an attempt to adopt a partisan political approach by a bank will leave it very vulnerable to adverse publicity.
Up until recently Lloyds had done a pretty good job of walking this not too difficult line. Last week’s missive was a worrying development.
Advice Line Hours
Currently the Union’s Advice Line ‘opening’ hours are 8:00 a.m. to 6:00 p.m. Monday to Friday.
When we began this pattern a year or so ago we did not know what the level of demand for the hour before 9:00 a.m. would be. We now know that only an average of 1.8 members a week contact us before 9:00 a.m. whereas many more members with active cases need us to contact them outside our advice line hours, during the evenings and weekends. The 5:00 p.m. to 6:00 p.m. slot remains busy.
As I said last year the cases we deal with now are massively more complex, with significant employment law implications, and we have had to change how we work to adapt to this new environment. This has included finding the best use of resources, including fine tuning the hours of the advice line, and the very low demand before 9:00 a.m. doesn’t make opening then very sensible.
Accordingly, with effect from 1.10.2025 the new advice line hours will be 9:00 a.m. to 6:00 p.m. Monday to Friday.