Protecting free speech on Israel/Palestine

Commentary icon15 Dec 2023|Comment

David Renton

Barrister at Garden Court Chambers

Franck Magennis

Barrister at Garden Court Chambers

Over the last two months, a large number of workers have been dismissed from their workplace or threatened with disciplinary action for speaking out about the war in Gaza. Although there is no definitive figure, we conservatively estimate that in excess of 100 people have been affected. As far as we are aware, in every or perhaps almost every case, the speech which has led to disciplinary action has been pro-Palestinian speech.

In the piece that follows, we focus on UK employment law, and the obstacles it places in the way of an employer disciplining an employee for speaking out about the conflict.

Equality Act 2010

The Equality Act prohibits direct discrimination, indirect discrimination, and harassment and victimisation. To have the benefit of that protection, an employee must have a protected characteristic (or be associated with someone who does), and the detriment (which might include disciplinary action or dismissal) must be on grounds of that characteristic, or related to, or connected to it.

There is no doubt that being Palestinian, or Muslim or Jewish brings you within the protection of the Act. So that, if for example, an employer had a policy of limiting all speech around Israel and Palestine and only investigated the activities of Muslim or Palestinian or Jewish employees, this would certainly be indirect discrimination against Muslims, Palestinians, or Jews and might in all likelihood also be direct discrimination against them.

The more significant question, in the light of the present widespread attack on free speech, is whether the Tribunal is ready to recognise “anti-Zionist” or “pro-Palestinian” opinion as being a protected characteristic even where the employee concerned is not Muslim, Palestinian, or Jewish. Philosophical beliefs are capable of being a protected characteristic. Whether they are not, in each individual case, depends on the nature of the person’s belief.

The leading case on what constitutes a protected belief is Grainger v Nicholson. It set out five circumstances in which a belief qualifies a protected characteristic:

  • The belief must be genuinely held.
  • It must be a belief and not an opinion or viewpoint based on the present state of information available.
  • It must be a belief as to a weighty and substantial aspect of human life and behaviour.
  • It must attain a certain level of cogency, seriousness, cohesion, and importance.
  • It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others (para 24)

The list of opinions which have been held by the Employment Tribunal to constitute protected beliefs include: a belief in man-made climate change, spiritualism, left-wing democratic socialism, a belief in workers’ control of industry, ethical veganism, gender-critical feminism, and a belief in participatory democracy. In European Union law, from which UK definitions derive, the following have also been treated as protected beliefs: support for the Hare Krishna movement, or for Jehovah’s Witnesses, pacifism, Communism, etc.

Given the way in which the category of protected beliefs has tended to widen over time, we anticipate that, on a relatively short timescale, there are going to be decisions of the ET recognising pro-Palestinian opinion as a protected belief.

As in all cases concerning discrimination, it is crucial to give careful thought about whether to specify an actual, rather than a merely hypothetical, comparator. In many workplaces, we have found that it is often possible to contrast the treatment of employees with anti-Zionist beliefs with those who hold strong beliefs about other political conflicts, and about the Russian invasion of Ukraine in particular. The difference in treatment is sometimes stark and can provide a useful basis for comparison.

Historically, the key questions in opinion or belief cases has been what employment lawyers call “the ‘reason why’ question.” In this context that would mean: is the reason why the employee was disciplined/dismissed that (a) the employer had, in practice, a policy of punishing anti-Zionist speech in relation to which it took a specific, and distinctively harsh, policy of disciplining anyone who spoke up in support of Palestine, while allowing other forms of controversial speech to go unpunished, or (b) did the employer punish this particular speech, because something about the words was uniquely and excessively offensive?

That old test did not assume either that speech should be protected or unprotected but left the tribunal to find a fair balance of its own.

The appellate courts have however seemed to move away from the above questions. In the recent EAT case of Higgs v Farmor’s School [2023] EAT 89, it was held that the real questions in a free speech case should be rather (1) was there a “close and direct nexus” between the act leading to the punishment and the employee’s underlying belief? If there was, then any attempt to limit them was unlawful unless (2) the measures adopted by the employer were prescribed by law; and (3) they were necessary to protect the rights, freedoms, or reputation of others.

This new test represents a significant moving of the lines, which will put pressure on Tribunals to look much more closely at an employer’s justifications for attacks on free speech and is likely to make it much harder for employers to justify disciplining/dismissing employees.

Ordinary Unfair Dismissal

Under the general law of unfair dismissal, contained in section 98 Employment Rights Act, and the associated caselaw, an employer is entitled to dismiss a person for behaviour which is misconduct. And conduct which is capable of causing reputation damage to the employer (bringing them into dispute) can potentially be such misconduct. The caselaw on what constitutes misconduct is highly subjective, but, for example in the free speech case of Keable v Hammersmith, the following were accepted as factors pointing to a lesser punishment:

  • if the speech concerned was made outside the workplace
  • if the speech concerned was made in a private capacity
  • if there was no discernible link to the employment
  • if the speech concerned was not discriminatory, criminal, or libellous
  • if the speech concerned was not insulting or obscene
  • if the employee had a right to express his opinions in his own time
  • if the employee had not chosen to make his opinions publicly on any scale, rather they had been shared by his critics who created the audience for them.

We anticipate that in many/most anti-Zionist cases some or most of these factors in mitigation will apply to protect the employee.

In a number of cases, the courts have looked unfavourably on employer arguments that expressing controversial opinions would bring the employer into disrepute. In Smith v Trafford Housing Trust, an employee had

  • expressed his views moderately
  • to a limited audience of friends
  • outside work hours

The judge concluded that he could not envisage how such speech could “sensibly lead any reasonable reader to think the worst of the Trust for having employed him.”

Practical Considerations

We would encourage any employee representatives reading this piece to consider practical steps which may have to be taken in anti-Zionism cases in particular.

For example, in cases where the employer asks the court to apply the IHRA definition of antisemitism it may be sensible to remind the court that that definition is contentious, has been criticised by senior judges, and by the definition’s own drafter, and has led historians of scholars of antisemitism to produce a reasoned alternative to it.

It may be necessary to call expert evidence on the definition’s use, or to challenge broader allegations that an employee’s conduct crossed the line into antisemitism.

We would also invite colleagues representing in cases of this sort to liaise with the European Legal Support Centre, which defends advocates for Palestinian rights across Europe, and monitors attacks on them.

David Renton

David Renton is a Barrister at Garden Court Chambers specialises in housing, discrimination and employment law. He acts for vulnerable... Read more »

Franck Magennis

Franck Magennis is a Barrister at Garden Court Chambers who practises in public, civil and criminal defence. His work centres... Read more »