Should employees be able to express their lawful views at work? Acas gets into murky waters

Over the last few years, we've seen an increase in the number of clients asking for advice on how to deal with staff who have expressed views (usually on their personal social media accounts) which are at odds with their organisation's ethos or have upset other members of staff. 

These can be difficult waters to navigate - even for those employers fully cognisant with employment law. In Corby v Acas, one of Acas's own employees brought a claim against it, arguing that he has been discriminated against on the grounds of his beliefs. 

Facts

Mr Corby, works for ACAS as a conciliator. He is white and is married to a black woman and has black children. Acas employees use Yammer to share ideas and communicate internally. Yammer has been described as the ‘Facebook of the corporate world … where friends are replaced with colleagues, ads are replaced with corporate reminders, and updates are related to events, questions, and problems colleagues are trying to solve.’

Mr Corby added a number of posts to the platform about his views on race and racism. He wrote that he had ‘experienced abuse and bigotry from both sides’ but that ‘worryingly divisive’ current ideologies ignore this. Another post linked to an article by a free speech campaigner and GB News host which argued that ‘currently fashionable conceptions of marginalised identities’ are incompatible with ‘the fearless exchange of ideas’. He also expressed his opposition to critical race theory (an academic concept which believes that racism is something that is embedded in legal systems and policies and is not just the product of individual bias or prejudice).

Some of Mr Corby's colleagues objected to his posts because, they said, they promoted racist ideas and complained to their manager. Acas dismissed their complaints but did ask Mr Corby to delete his posts. In response, he brought a claim, arguing that Acas had discriminated against him because of his protected beliefs.

Decision

A preliminary hearing was held to determine if Mr Corby's views were protected beliefs under s10(2) of the Equality Act 2010. It's long been established that to qualify, beliefs have to satisfy what is known as the ‘Grainger test’. There are five parts to that test: the belief has to be genuinely held, be more than just an opinion or viewpoint, concern a weighty and substantial aspect of human life and behaviour, have cogency and importance, and be worthy of respect in a democratic society. 

Mr Corby was cross-examined about his beliefs. He made it clear that he was opposed to critical race theory and, what he referred to as ‘wokism’, because it can result in separatism, segregation and ethnocentrism. He said that he prefers the approach of Martin Luther King which desires a society where people are judged by the content of their character, rather than the colour of their skin. He opposes ‘identity politics’ which pit one group against another.

The tribunal said that it had ‘no hesitation’ about finding that Mr Corby's beliefs were protected. His views were genuine and formed part of his identity and affected the way he lives his life. They were grounded in philosophical teachings aimed to eliminate racism in society.

Another tribunal will have to decide if Acas has discriminated against Mr Corby because of his protected beliefs. We don't yet have details of the alleged discrimination, but it may include harassment by his co-workers. We'll keep you posted.

Our view

It's worth reiterating comments we have made before when looking at competing beliefs in the workplace. It's not easy for employers to deal with fundamental differences in values or beliefs between colleagues or people they come into contact with. We seem to be more polarised than ever. Social media algorisms make this worse because they push content that they know we are interested in, which supports what we already think, rather than challenging our views and prejudices. 

However, there are some steps you can take to make your workplaces genuinely inclusive of people with different beliefs: 

1. It is sensible to have policies in place which set out the standards of behaviour you expect your staff to follow, but it's important not to be too restrictive about what they can say, or do, in their own time, particularly where their comments or profile don't reference you as their employer. Employees are entitled to hold and express views on controversial matters of public interest even when those views offend, shock or disturb others or don't align with your EDI values. There are some bars to this - but they only apply to views that are not worthy of respect in a democratic society. This point has been interpreted to mean extreme views akin to Nazism or totalitarianism.  

2. If you allow your staff to openly discuss controversial topics at work, you can't limit these to views you or the majority of your staff deem acceptable. There is no hierarchy of rights, and you must be even handed in your approach. Don't pick and choose what beliefs you allow your staff to express. 

3. Make it clear that staff should be tolerant of, and respect, reasonably expressed views that they don't share. They should not automatically accuse people of being racist, homophobic, transphobic etc simply because they have different opinions. All colleagues should treat each other with respect and courtesy - particularly when they have a difference of opinion. 

4. It's also worth evaluating your approach to disagreement. Organisations that expect and welcome dissenting views are likely make better decisions and be mentally healthy places to work. They provide an environment where employees are able to speak up, whether they're sharing ideas, asking questions, expressing concerns or acknowledging mistakes. 

How we can help

We can deliver training to your managers on how to deal with these issues. We will design a programme for you or you can access our online options. We have created two new online diversity and inclusion modules to help employers properly train staff. These cover all protected characteristics - including a detailed strand on belief discrimination. The first applies to all employees, and the other focuses on managers to help them to understand the key role they play in ensuring that the people they manage behave appropriately. 

If you'd like to know more about these, please speak to Charlotte Rees-John, Jenny Arrowsmith or Gordon Rodham.

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