Where do we draw the line between free speech and racism?
Recently, a high-profile case tested the volatile boundary between workplace speech, belief and discrimination. Consequently, it forced employers, employees and tribunals to revisit protected beliefs under the Equality Act 2010. So, where do we draw the line between free speech and racism? Fortunately, the courts have offered fresh guidance.
The background to the case
Initially, a white British emergency ambulance crew member faced internal disciplinary proceedings. Specifically, he made an inappropriate comment during a heated confrontation with a black colleague. Later, he mimicked that colleague’s accent during an investigative interview. Then, in the aftermath of George Floyd’s death, he rejected the concept of systemic racism. Furthermore, he argued that individual choices dictate outcomes. Additionally, he claimed Black people should not “hide behind their race” during a mess room debate.
The employer’s response
Following complaints, the employer launched an investigation and disciplinary hearing. Ultimately, the disciplinary manager reached a clear conclusion. Firstly, the employee could hold his views. However, his delivery amounted to gross misconduct. As a result, the manager issued:
- A final written warning
- Mandatory unconscious bias training
- Reflective practice on workplace language and systemic racism
The Employment Tribunal decision
Subsequently, the employee brought claims under Section 13 of the Equality Act 2010. Specifically, he alleged direct race and belief discrimination. Moreover, he argued that all humans belong to a single race and deserve respect. By majority verdict, the Tribunal agreed. Therefore, it treated his rejection of systemic racism as a protected belief. Consequently, it ruled the employer’s sanctions unlawful.
The Appeal Tribunal overturns the ruling
However, the Appeal Tribunal identified grave errors in both logic and law. Crucially, the Judge distinguished between how society ought to operate and how it actually functions. Furthermore, the Judge held that rejecting systemic racism does not automatically flow from believing in human equality. After all, someone can passionately support equal treatment while still recognising systemic racism exists. Additionally, the Appeal Tribunal criticised reliance on unverified internet research as legally perverse. Ultimately, it dismissed the race discrimination claim.
What this means for employers
This ruling delivers essential clarity on free speech and philosophical belief at work. Notably, it draws a sharp line between quietly holding a belief and expressing it aggressively. Therefore, employers should note the following:
- Employees may hold protected beliefs freely
- However, insensitive or aggressive expression can attract discipline
- Personal viewpoints do not enjoy the same protection as philosophical beliefs
- Employers gain broader discretion when statements fall outside protected belief
Consequently, behaviour and belief remain legally distinct. Where do we draw the line between free speech and racism? Broadly, the courts now separate the belief itself from the manner of expression.
Speak to our team
Where do we draw the line between free speech and racism in your workplace? Get in touch with our team today for tailored HR and employment law advice. We will happily review your policies and help you handle sensitive matters with confidence.
