Employers: mind your own business

I found your nose. It was in my business.

Adrian Smith, an employee of the Trafford Housing Trust, has won a breach of contract claim against his employer after he was demoted for saying on his Facebook page that gay marriages in church represented “an equality too far”.

This is a sensible and important decision, and one which the Christian Institute, who funded Smith’s claim, and the National Secular Society both agree on.

I am a member of the National Secular Society and I am heartened that these two very different organisations – who clashed over Council Prayers in the Bideford judicial review – are objective enough in their analysis of events to find common ground on such a vital issue as free speech, as they have also done in supporting the campaign to reform Section 5 of the Public Order Act which criminalises speech found to be “insulting”. The Smith decision was also welcomed by the prominent human rights campaigner, secularist and gay rights activist Peter Tatchell.

Smith was speaking in a personal capacity. He was not speaking on behalf of his employer. His actions harmed no-one and he had every right to express his opinion on gay marriage without disciplinary consequences. Some of the commentary has highlighted how calmly he expressed his view but that misses the point: even if Smith had been ranting I would have no objection. But I do think the actions of the Trafford Housing Trust were even more disturbing given Smith’s calm objection to gay marriages in church.

Funnily enough, I not only agree with Smith’s right to express his view in these circumstances but I almost agree with the substance of those views. I wouldn’t describe gay marriages in church as “an equality too far”. However, I would say that religions should be free to organise and run themselves as they see fit without interference from the state, but – crucially – I would also add that the state should be able to legislate about marriage (or anything else) without privileged interference from religions. For that, though, we require disestablishment.

Smith’s expression of his views on gay marriage – in his personal capacity and outside of working hours – is wholly different to an employee seeking the right to discriminate against gay people in the course of their employment duties, as in the case of the registrar Lillian Ladele who refused to conduct a civil partnership on the grounds of religious conscience (her appeal is currently before the European Court of Human Rights). Ladele sought to discriminate. Smith did not. He merely sought to express an opinion. Outside of work. On a non-work matter.

There must be a point at which an employee is free to speak their mind without fear of disciplinary action by their employer, and especially when the employer is not the subject of those discussions. Again, Smith’s case was even more disturbing here because his comments on Facebook were only visible to certain people, rather than the public at large. I say Smith’s right to express these views should also extend to publishing them in the full public domain.

Under an employment contract each party has its rights and responsibilities. An employee is paid a salary in return for labour and a duty to act in the best interests of the employer, and the employer pays a salary for that labour but is entitled to rely on the loyalty of the employee (such as, for example, not breaching confidentiality, subject to specific rules safeguarding whistle-blowers).

I believe it is also legitimate for an employer to expect its employees (but more so its senior employees and its officers) not to disparage or criticise the employer in public. If an employer seeks to contractually control what an employee is permitted to do or say in their personal capacity, then those restrictions must be to the extent strictly necessary to protect the employer’s legitimate interests – and if the employer goes too far the contractual clause should be unenforceable by a court. (Something isn’t necessarily legally binding just because it finds its way into a contract: for example, if two people contractually agree to rob a bank and divide the spoils in certain percentages that contract will be unenforceable.)

Most of us share our working environments with many different people. We all have different views on many things. We are entitled to express those views outside the office and to join political or religious organisations that cater for those views. In fact, I think we are also entitled to express our personal views within the office amongst our colleagues, but in an appropriate volume. Most of us work in offices where, I am sure, we occasionally turn our chairs to face each other in order to chat, gossip or discuss current affairs; these moments are sometimes described as “water-cooler discussions”. The only conceivable merit of these moments is that people might have different opinions which they feel at liberty to share. John might argue that gay marriage in church (or even outside church) is an “equality too far”; Iftikar might say this god exists but this one doesn’t; and Nick might have strong views on restricting immigration, or on those receiving state benefits.

The only time these discussions should be a matter for the employer is not so much the views themselves, but rather the amount of discussion. This is because employees are at work to work, not to discuss the X-Factor, Islamic theology or Iain Duncan Smith’s welfare reforms. To the extent employers are happy for their employees to natter in this way amongst themselves, they don’t have a right to censor or to disapprove/approve of those views.

I often discuss secularism with my colleagues, and usually the discussions are calm and of a decent quality, but there comes a point where I think to myself, “Enough. Now I must draft some contracts that people will sign without even reading.”  I stop because I’m not there to further secularism, and I don’t want to be accused of “evangelising” to my colleagues (and nor do I actually want to evangelise; it isn’t appropriate in a work context).

As a general rule employee membership of an organisation outside work should only be a matter for an employer where there is a breach of the criminal law, such as membership of a banned organisation. Similarly, the expression of personal views outside of work should only be a matter for the employer where there is a breach of the criminal law (such as inciting violence), or where an employee holds themselves out as speaking on behalf of the employer, or in certain circumstances where an employee criticises the employer.

The expression of an employee’s personal views in the office should only be the employer’s concern when it translates into actions (or inactions, as in Ladele’s case), and when those actions or inactions harm the employer’s employees or its customers/service recipients.  Examples of this might include harassment, discrimination, bullying, or inappropriate evangelising (religious or non-religious). The point at which merely expressing an opinion becomes an action or inaction which infringes someone’s rights might sometimes be a blurry legal one to draw in practice, and this is probably why many people might feel instinctively awkward expressing personal opinions in an office environment (or why they might just play it safe and meekly go along with what they perceive to be the most inoffensive and “tolerant” viewpoint), but it’s a right that exists.

I can understand employees not wanting to explore their rights to free speech, free expression and free conscience within the office. But those employees do need some forum where they don’t feel under pressure to bite their lip, and that forum is the outside world.

Having said all this, I must admit there is something that troubles me. In my various employment roles over the years I have never been responsible for recruitment, but if such a responsibility presented itself I’m sure I would run a basic Google search on a candidate. From speaking to colleagues who do recruit, this now seems to be standard but unwritten practice.

If I saw someone was a Scientologist, would that affect my decision? Probably. If I saw someone was a member of the BNP, would that? Again, probably. That’s the grey area – not legally, because people are entitled to join those organisations as they are not proscribed by law, and employers are not entitled to discriminate on the grounds of membership of these organisations – but morally, because I personally consider those organisations and their ideas to be bad.

This simply shows that all of us must be careful about what we put in the public domain or even within a reasonably restricted social media environment. As Nick Cohen said about the Smith case in this Spectator piece:

“Adrian Smith could never have been hounded in this way 30 years ago. He would have expressed his opposition to gay marriage in his church. Only the congregation would have heard him say, ‘I don’t understand why people who have no faith and don’t believe in Christ would want to get hitched in church. The Bible is quite specific that marriage is for men and women if the state wants to offer civil marriage to same sex then that is up to the state; but the state shouldn’t impose it’s rules on places of faith and conscience.’ His fellow believers would have nodded their assent, and no one else would have known. His colleagues would not have followed him to the pews and taken down his words as evidence to use against him.”

The point about availability of information applies to my example of Scientology/BNP membership: if someone is happy for that information about themselves to be in the public domain or easily accessible, then unfortunately in practice they sort of have to accept this might cut off employment opportunities if an interviewer is savvy enough to use an internet-based search engine. But here I am just highlighting a practical difficulty. I am not saying the law should support the employer. If a candidate for a job can demonstrate that he or she had been denied employment because of membership of those organisations, or because of views expressed in support of those ideologies, and there was no evidence this would have hindered the proper execution of employment duties, then the law must be on the side of the candidate.

I am honest enough to say I would rather not hire someone who belonged to or supported the Church of Scientology or the BNP, but I take some comfort in knowing I could find myself on the wrong side of all this. I suppose it’s a kind of karma: if a prospective employer googled my name they would find a number of internet pages where I express my support for secularism. If the interviewer were a fundamentalist Christian those search results could be the difference between my being called for interview and not, of being offered a job and not. That’s the risk I take. I think the main legal angle here, at least in practical terms, is a person’s right to control what information about themselves enters the public domain, especially when that information is sensitive because it reveals, say, their religious or political beliefs.

In Smith’s case he was specifically demoted but it’s not difficult to imagine an employer trawling the internet to discover an existing employee’s personal views, as an unpleasant management tool: to “manage out” an employee; to de-filter “inappropriate” candidates for promotion; or to make tricky redundancy decisions in a restructure.

And this is why the Smith case is so important. Ignoring the practical realities of an employer’s temptation and ability these days to discover employees’ and potential employees’ personal opinions, the case at least successfully draws some line between an individual’s employment responsibilities and their rights outside work.

One problem employers don’t have is too little power. In fact, the very large corporations increasingly have the power of states but not the responsibilities (whereas states increasingly have the responsibilities without the power). Employers do not need – and they are not entitled to – control over or even knowledge about an employee’s life outside of work.

To put it simply, in terms even employers can understand: an employee’s personal views are none of the employer’s business.