Navigating Political Opinion in the Workplace

The recent Northern Ireland Tribunal Judgement Sarah McCrossan v Department for Social Development [2016] (NIIT 00062_15FET) highlights the difficulties employers face in taking action against employees who express political opinions which may offend others. In this article, we discuss the unique political circumstances of 2017 and some important points employers should know.

In the above case, Ms McCrossan commented on her Facebook page that all those that voted DUP in the 2015 elections were ‘self-serving bastards’. A colleague complained and she was disciplined by her employer for bringing the ‘NICS (Northern Ireland Civil Service) into disrepute by on-line behaviour’ and commenting ‘on controversial issues connected with the responsibility of the minister’ which was expressly forbidden under the NICS Handbook. Ms McCrossan made a claim for discrimination and won. The tribunal concluded that Ms McCrossan had suffered a detriment on the grounds of political opinion and therefore she had suffered unlawful discrimination. The Tribunal also pointed out that the employee’s rights to freedom of expression were engaged.

What’s new?

In NI, we do political correctness at work pretty well if truth be told. With decades of experience, most know exactly when and how to express their feelings when they run deep, and most know that the workplace is not the place to vent. Standard Equal Opportunities policies will read along the following lines;

We (the employer) will create a working environment free of bullying, harassment, victimisation and unlawful discrimination, promoting dignity and respect for all, and where individual differences and the contributions of all staff are recognised and valued.  The display of flags, emblems, posters, graffiti or the circulation of materials or the articulation of slogans or songs which are likely to give offence or cause apprehension amongst particular groups of employees is prohibited.

So what’s the issue in 2017?

We are taking note because something has shifted. We have a very potent mix of events happening both locally and globally which are causing greater numbers of people to feel free to comment, both on social media and personally, to friends and colleagues alike.

Why?  Perhaps there is such an increase in emotion because many of these issues touch our very basic understanding of human rights.  In Northern Ireland in particular, many will be expressing views that they feel are unrelated to what may have been considered ‘taboo’ topics from the past.

• Brexit: The vote to exit the EU (despite the majority against the idea in NI) has raised debates touching on immigration and identity which inevitably opened up an uglier narrative around nationalism and racial and religious divisions.
• Trump: The new U.S president-elect is the marmite of leaders. Some love him, many detest him, and few are on the fence.  The nerves he is touching cannot be listed in a simple article, but in short include allegations of racism and misogyny mixed in with reports of fraud, a disregard for environmental issues and a tendency towards ‘false reporting’ rather than fact.
• Crisis in Stormont: Closer to home, so many issues are hanging in the balance, including the workings of the Stormont Assembly and Executive, budgets, RHI, the Irish language, a Bill of Rights, the status of Northern Ireland after Brexit and minority rights.

These issues will impact all of us in some way and therefore many feel these topics are ‘fair game’ for discussion.  In fact, we are seeing a new era of ‘protest’ which may be fuelled by the speed and facility that groups can organise in the age of social media and immediate / constant news streaming. As I write, President Trump is being warned by activists that the largest protest in UK history will coincide with his state visit to the UK.

What employers should know

As an employer there are ways in which you can to discourage inflammatory comments which could offend colleagues of a different opinion or reflect poorly on your organisation. Employers have a duty of care to their employees to protect them from harassment and discrimination and also to create and environment which promotes equality and diversity.

This, of course, must be balanced against the right to freedom of thought, conscience and religion, the right to freedom of expression afforded by the Human Rights Act (HRA) and the right not to suffer a detriment on the grounds of political opinion.  Political discrimination applies in Northern Ireland specifically.  For the rest of the UK, the Equality Act 2010 includes protection from discrimination on the grounds of “philosophical belief” and cases have gone either way as to whether or not political belief falls within this.

It is noted that in the NI case described above, had the employer (NICS) disciplined Ms McCrossan for making offensive remarks about her colleagues on social media (rather than focusing on the political opinion expressed), the outcome may have been different.

Employees of public authorities may bring a case to court under the HRA if their rights have been breached. For employees who do not work for a public authority, the HRA is still important. Employment tribunals and the courts are public authorities and so must consider human rights when deciding cases.

Even in private companies, dismissing an employee solely on account of his or her political views could be unfair and the employee would not need to have one years’ service to bring this claim.  This was illustrated by the case of Redfearn v United Kingdom, a BNP member who was dismissed from his job as a bus driver because of the concern about how customers might perceive his political views.

The Advice to Employers

A number of things can be done to minimise workplace conflict whilst maintaining respect for individual human rights and freedom to express political opinion;

1. Inform managers that there is concern about the level of potentially inflammatory discussion at work and that they have a responsibility to set the tone and role model mutual respect.
2. Review the Equal Opportunity and Bullying and Harassment policy.  It should be made clear that the employer will not tolerate behaviour which is designed to offend, intimidate, alienate or threaten a fellow employee.
3. Review the Social Media policy and include specific instructions about personal use. Employees should be instructed to be mindful of comments which could be offensive to colleagues when posted publicly as well as any posts which could have the effect of bringing the employer into disrepute.  It is acceptable to request employees to make a statement on their page that their comments do not reflect the opinion of the employer.
4. In some cases, it may be prudent to send out a memo to all employees reminding them of the policies in place, the importance of mutual respect and to conduct themselves in a ‘professional and non-disruptive ‘manner.  The employer may request that employees avoid sharing political opinions which may be offensive or controversial during the working day and to respect the differences and diversity that exist between colleagues.