What are your rights if you are disciplined at work for social media posts?

The so called “culture wars” of the last few years have contributed to polarisation in our society. It is often said that a key manifestation of this malaise is the phenomenon of cancellation for things said online, particularly on social media.

The prevalence of social media raises a number of issues when balancing an employee’s right to freedom of expression against the duties they owe to their employer. Increasingly, employees are facing disciplinary proceedings, and even dismissal, as a result of comments they make on social media or in other public forums.

In these circumstances, employers could be acting unlawfully and discriminating against their employees due to their beliefs. Employees should be aware of their rights in relation to freedom of expression and the legal protections they have in the face of disciplinary action. As an employee, what are your rights if you are disciplined or dismissed for something you said on social media?

Freedom of expression rights

The European Convention on Human Rights (“ECHR”) provides robust protection for freedom of expression under Article 10, particularly where political or academic speech is concerned. When an individual brings a claim in the employment tribunal, such as for unfair dismissal, the tribunal must give full effect to their right to freedom of expression, even if their employer is a private company.

This right does have some limitations, as Article 10(2) acknowledges that freedom of expression can be restricted if there is a legitimate aim, such as the protection of health and morals or the protection of the rights and reputation of others, and if the way of achieving that aim is proportionate. For employers, a legitimate aim could be protecting their reputation, confidential information or the rights of other employees.

However, an employment tribunal must carry out a careful and proper balancing of an employee’s right to free expression and the rights an employer seeks to rely upon to restrict it. The tribunal must consider the nature of the speech concerned, the speaker’s motives, the actual damage caused and the severity of the sanction imposed. So, if an employee is speaking about a matter of political importance or raising a matter of public interest affecting others, an employer must show an extremely good reason to punish them for doing so. They must also show that damage to their interests has actually occurred and that the damage is sufficiently serious to justify the restriction – they are unlikely to be able to rely on a mere hypothetical fear of damage or contractual / policy terms about social media posts creating a risk of reputational damage. In many cases, this is much harder than a typical employer appreciates.

Unfortunately, unless your employer is a public authority, it can sometimes be difficult to activate your free expression rights as an employee and you would need another substantive claim, such as for unfair dismissal, before a tribunal can hear arguments about the ECHR. Unlike a discrimination claim, an employee must have a qualifying period of service to bring an unfair dismissal claim. At present, this is two years’ continuous service with an employer.

This does, though, raise an interesting possibility for the future. The Labour Government’s Employment Rights Bill says unfair dismissal will become a “Day One” right, i.e. from the start of employment a dismissed employee will be able to bring a claim and, importantly, they will also be able to raise ECHR arguments. Although there seems likely to be a lighter touch dismissal procedure during an initial period of employment (currently mooted to be nine months), this would not affect the need to show that any dismissal is a proportionate interference with an employee’s ECHR right to free expression. What we could see is effectively a three tier system: light touch procedure claims; ordinary unfair dismissal claims; and free expression dismissal claims. In other words, if there is a potential free expression component to your dismissal, it is going to be best to put it forward in order to give your claim its best chance of success.

Protection against discrimination

Many free expression cases which we encounter actually also include an individual’s rights under Article 9 of the ECHR, the right to freedom of religion and belief.

Unlike Article 10, this right has a dedicated legal vehicle under English law. Section 10 of the Equality Act 2010 provides protection from discrimination for holding or manifesting a protected belief. A protected belief means any religious or philosophical belief (or lack of belief).

To qualify as a philosophical belief, the belief must meet the criteria set out in the seminal case of Grainger plc v Nicholson. It must:

1. Be genuinely held;
2. Be a belief, rather than an opinion or viewpoint based on the present state of information available;
3. Be about a weighty and substantial aspect of human life and behaviour;
4. Attain a certain level of cogency, seriousness, cohesion and importance; and
5. Be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

The ambit of protection here is broad, and lawyers can be very creative in arguing that beliefs are protected. Beliefs which have been granted protection to date include gender critical beliefs; anti-Zionism; and, criticism of critical race theory. All of these are contentious “culture war” issues liable to raise eyebrows at an employer if there is a complaint about what an employee has been posting on social media.

Being treated less favourably because of a protected belief is unlawful. Currently, however, if an employee manifests a protected belief in an inappropriate or objectionable way, employers can argue that it is the way the employee manifested their belief, rather than the belief itself, that is the reason for less favourable treatment.

Whether a manifestation is inappropriate is tested by reference to Article 9(2) of the ECHR. Article 9(2) acknowledges that the right to manifest a belief may be restricted if it is necessary in a democratic society, in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

As with Article 10, a tribunal will need to carefully scrutinise and balance competing rights – it should carefully interrogate the employer’s reasons for interfering with an employee’s human rights and show it went no further than it needed to in the circumstances (e.g. would a written warning have sufficed instead of dismissal?). Where political or academic matters are concerns, making out this proportionality test is a significant challenge for employers.

Unlike unfair dismissal, protection from discrimination is a right that employees have from day one of employment. This means there is no qualifying period to bring a discrimination claim in the employment tribunal.

What to do if you are disciplined at work for social media posts?

The good news is that you’ve already taken the first step by reading this blog and understanding the basics about your rights.

If you want to discuss more, please contact a member of our team or submit an enquiry form, below, and we can talk about your particular situation.