Freedom of expression vs intolerance – What do employers need to know?

Although freedom of expression is guaranteed under Article 19 of the International Covenant on Civil and Political Rights, it is not an absolute right. Under Article 20, “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”. 

In the workplace, employers are legally responsible for acts of discrimination, harassment and victimisation carried out by their employees in the course of their employment unless it can be shown that all reasonable steps have been taken to prevent the offending acts. This legal responsibility is called “vicarious liability”.

So what does this mean in practice for employers and to what extent are they responsible for the opinions and behaviour of their staff?

Legal cases involving discrimination and harassment are bad news for employers. They take up lots of management time and must be handled carefully to avoid bad publicity, low staff morale and large employment tribunal awards. Employees who have suffered discrimination from a colleague can sue that colleague directly, but are more likely to sue both the colleague and the employer, as the employer will usually have deeper pockets. 

Discrimination claims usually don’t have an upper award limit so they can end up being very expensive – witness the £3.2m award against Sberbank in the recent Svetlana Lokhova case. Another sting in the tail is that an employer’s liability doesn’t end once an employee leaves the organisation – they can still be sued even though the person in question no longer works for them.

Read more about discrimination:

• How to avoid discrimination claims
• Can illegal workers bring discrimination claims?
• Women still feel discriminated against in British workplaces

The most important thing that employers can do to avoid being vicariously liable is to ensure that they have taken all reasonable steps to stop offending behaviour from occurring in the first place. 

This means:

• Putting in place regularly updated written policies which prohibit discrimination and harassment in the workplace, both of work colleagues and third parties such as customers;
• Making sure that all new staff have read these policies as part of their induction;
• Providing training on a regular basis to refresh memories and make it clear what is and isn’t acceptable behaviour – this should happen at all levels of the organisation;
• Training line managers to identify and deal with unacceptable behaviour in their teams;
• Implementing a system for dealing with complaints, including advice on what employees should do if they feel they are suffering from discrimination or harassment;
• Providing employees who have been discriminated against or harassed with access to counselling services where appropriate; and 
• Providing any employees who have harassed other staff members with information and training to ensure that it doesn’t happen again

An employer taking all these steps could clearly show that they have taken the risks seriously and made all employees aware of their responsibilities. If the worst should then happen, there would be less chance of being held vicariously liable for a discriminatory act, and the offending employee would find it hard to claim that they didn’t know they were doing anything wrong.

To sum up, the Hopkins debate has highlighted the issue of intolerance of minorities and started a wider debate. While freedom of expression is a fundamental right, the right of all employees to be treated with equality, dignity and respect in the workplace is equally as important. It therefore seems that finding the appropriate balance between these rights is a challenge that every employer must face and overcome.

Minal Backhouse is managing director at Backhouse Solicitors.

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