Introduction
Employment law is a broad branch of law that determines how employers and employees are protected. It regulates the hiring and firing of employees’ wages, shapes the moral standards enshrined in law, and deals with cases involving beliefs and free speech in the workplace. Employment law is designed to protect employees’ rights and the employer’s interests (The employment relationship, 2020). All employees and employers in the U.K. are covered by the Equality Act 2010 (EqA), which regulates legal relationships based on discrimination. The EqA governs the specifics of the law, such as freedom of speech and freedom of belief. Under this law, the courts rule in cases where employees’ release of expression results in discrimination or oppression on any factor. It is interesting to take a critical look at the law regarding free speech and freedom of belief in the workplace because the court’s position on discrimination is not always unambiguously correct.
U.K. Legislation in Employment Law
The Legal Aspect of the Terms under Consideration
To begin with, it is helpful to examine the concepts of free speech and freedom of belief as legal terms. According to the Equality and Human Rights Commission (EHRC), act 10 on freedom of speech states that it protects the right to hold opinions and to express them freely without government interference (EHRC, 2021b). Human rights law is intended to protect health or morals, protect reputations and rights, and maintain credibility and impartiality (Harvey, 2021). Act 9 covers the right to freedom of thought, opinion, and religion. The law imposes restrictions that are “necessary in a democratic society in the interests of public safety, to protect public order, health or morals, or to protect the rights and freedoms of others” (EHRC, 2021a). State authorities or other persons may not interfere with a person’s beliefs unless there are such grounds: the maintenance of public safety and order, health and morals, or the rights and freedoms of others.
The International Covenant on Civil and Political Rights (ICCPR) is an important international treaty that regulates obligations to protect the rights to life, freedom of religion, expression and assembly, and a fair trial. The section on individual freedoms includes freedom of thought, speech, and belief. The ICCPR guarantees freedom of speech as a fundamental part of a democratic society, although it imposes restrictions if offensive content is created. Freedom is understood as the unconditional right to hold opinions, regardless of morality.
Employment Law
British employment law governs the agreements that arise between an employee and an employer, imposing obligations on both parties to fulfill their parts of the employment contract. The employment contract, in turn, prescribes the duties and responsibilities of the parties; litigation and the resolution of cases arising in the workplace are often based on the provisions of the contract Chamberlain, 2018; The employment relationship, 2020). Without workplace laws, British workers may face unfavorable treatment from their employers, and they will have no opportunity to remedy the situation.
Employment is regulated by a significant set of acts that contain obligations and clarify the rights of citizens. The Employment Rights Act of 1996 established regulations that employers must follow to respect the rights of employees (Employment Rights Act 1996, 1996). Situations that are governed by this act include layoffs, parental leave, parental shared experience, and others (Making rights work, 2018). In addition, the act defines exceptional cases in which an employer is responsible for the consequences of firing or discriminating against an employee. It regulates workplace relations by defining and specifying the need to protect human rights.
The Employment Relations Act of 1999 made significant changes to labor law by establishing new rules for trade unions and some rights for individuals. New provisions in the collective bargaining laws were introduced due to this act (Employment Relations Act 1999, 1999). They included procedures for recognizing trade unions: for example, union members cannot be discriminated against in any way based on their desire to organize meetings. In addition, union membership is no longer a valid reason for dismissal or blacklisting. Other important provisions include a code prohibiting discrimination based on gender. For example, if a mother refuses to take parental leave and is compensated for this time, the employer risks significant penalties. To a greater extent, the act regulates the general rules related to freedom of speech. It defines labor relations procedures in private cases: pregnancy, part-time employment, strikes, and indexation of awards.
Violation of any provision of the above act results in a fine. The law in Great Britain is scrupulous about respecting the rights and freedoms of its citizens. Acts 9 and 10 of the Human Rights Act define freedom of speech as an integral part of human life (Countouris & Ewing, 2021). Therefore a critical look is needed at whether the views of an employee or an employer should influence a decision in employment law (Owens, 2019). Practice shows that the legal system deals with complex cases, but there are no boundaries within which certain acts on freedom of speech in the workplace apply.
Equality Act 2010
Discrimination in the workplace means mistreating employees based on their membership in specific protected characteristics. It is against the law to discriminate against any employee based on their protected characteristics, and it can lead to a discrimination claim against the company. There are two types of discrimination in U.K. employment law: direct and indirect. Direct discrimination issues are related to the mistreatment of unfairness based on protected characteristics. Indirect discrimination refers to company policy, rules, or internal company policy.
The EqA protects people from discrimination in the workplace and regulates social relations. The law applies in the workplace, in education, for consumers of a product or service (Equality Act 2010, 2010: Government Equalities Office, 2011). The following protected characteristics fall under the act: age, gender reassignment, marital status, pregnancy, disability, race, religion, gender, and sexual orientation (Mason & Minerva, 2020). It has a powerful legal force in that it also deals with conflicts of human rights to freedom of speech and belief.
The workplace imposes obligations on the employee to comply with prescribed instructions. Relationships between employees are not always good, which is a typical situation in society. However, they may involve discrimination, which is already a violation of the law. Bryson notes that salary levels correlate with an employer’s degree of tolerance: for example, lesbians are paid 30% less on average (Bryson, 2017). Equality at Work also notes that employees with protected characteristics are paid less on average (Equality at Work, 2020). Such data means that employers not only have views contrary to tolerance but are also able to justify lower wages legally (Himmelweit & Stephenson, 2019). Conley and Page also argue that gender wage gaps are a consequence of inadequate enforcement of the EqA (Conley & Page, 2019). Conley (2019) argues that a rethinking of gender equality legislation is needed because freedom of speech still prevails over comfort in the workplace. Thus, gender and sexuality regulation in the workplace remains controversial and has not yet reached a complete resolution.
Is the EqA a potentially perfect solution to discrimination? Does it work in the workplace and protect citizens with intolerant positions on protected characteristics? (Gardner, 2018; Casserley, 2020). Everyone understands freedom of expression or opinion differently, but everyone agrees that curtailing this freedom will worsen the consequences (MacKinnon, 2020). Ginsberg is convinced that free speech is currently at risk because the government is creating more and more restrictions, including under the EqA (Ginsberg, 2021). Some people believe that equality is an unethical product of reality because society has too many freedoms (McCloskey, 2019; Heymann et al., 2020). It leads one to conclude that the EqA is probably not equal.
Various legal scholars have asked a similar question because it raises the problem of the harmonization of society and the validity of its beliefs. For example, Moses concludes that EqA has obligated case law, which means plaintiffs can rely on the defense (Moses, 2017). It implies that EqA succeeds in its goal of protecting the groups most likely to face discrimination. However, their protection may become predominant and leading compared to other citizens who have critical views.
The Case of Forstater in Defense of Gender-Critical Views
Forstater vs. Center for Global Development Europe (CGD) is a case in which notions of free speech and belief clashed with EqA actions. Maya Forstater worked as a guest tax expert with CGD, but her comments about trans women led the company to terminate her employment (Old Square Chambers, 2021). Forstater sued CGD for sex discrimination and victimization, but Judge Tyler deemed the plaintiff’s views “undignified” in a democratic society (Warner Goodman, 2021). Nevertheless, the Employment Appeal Tribunal sided with Forstater, stating that EqA applies even to gender-critical views (Employment Appeal Tribunal, 2021). The court ruled that the beliefs did not violate transgender rights, even if they could be considered offensive (Kurnatowska & Farr, 2021). In addition, the court called for the same principles of equality in deciding such cases and not to use subjective opinion.
Forstater’s case demonstrates a bias in that the equality and protected characteristics represented in EqA become more significant. Plaintiff’s position and opinion never directly resulted in moral turpitude or harassment (Yowell, 2021). Although Forstater won her case, a final judgment will be handed down in March 2022 (Old Square Chambers, 2021). This means that freedom of speech Forstater will be largely restricted. Thus, EqA is not the basis for an equitable workplace because it does not define the security of freedom of belief and speech.
The author of this essay believes that such cases are essential to the transformation and development of the law. The Forstater case affected several branches of law at once and pushed society to new questions of equality. The author believes that the court should recognize Forstater’s point and protect her views based on EqA because freedom of speech is an essential human person.
Outcomes
In summary, employment law in the U.K. is comprehensive and encompasses many branches. Labor law is supported by human rights legislation (EHRC) and the International Covenants on Civil and Political Freedoms (ICCPR). The most critical pieces of labor law are the Employment Rights Act of 1996 and the Employment Relations Act of 1999, which protects employees from discrimination in the workplace. The Equality Act 2010 contains significant provisions to protect people’s rights at Work and recourse. However, Forstater vs. Centre for Global Development Europe case demonstrates that equality does not always go hand in hand with freedom of opinion.
Reference List
‘Equality at work’ (2020) Institute of Employment Rights Journal, 3(1), 73–83.
‘The employment relationship’ (2020) Institute of Employment Rights Journal, 3(1), 62–72.
Bryson, A. (2017) ‘Pay equity after the Equality Act 2010: does sexual orientation still matter?’, Work, Employment & Society, 31(3), 483–500.
Casserley, C. (2020) The Equality Act 2010 a decade on. Web.
Chamberlain, J. A. (2018) ‘Flexibility’, in Undoing work, rethinking community: A critique of the social function of work. New York: Cornell University Press, (pp. 43–72).
Conley, H. (2019) ‘Gender Equality in the UK Public Sector: is reflexive legislation the way forward?’, in Jungwirth, I. and Bauschke-Urban, C. (eds.), Gender and diversity studies: European perspectives. Leverkusen: Verlag Barbara Budrich. pp. 71–87.
Conley, H. and Page, M. (2018) ‘The good, the not so good and the ugly: Gender equality, equal pay and austerity in English local government’, Work, Employment & Society, 32(4), 789–805.
Countouris, N. and Ewing, K. (2021) ‘Brexit and workers’ rights’, Institute of Employment Rights Journal, 4, 7–84.
Employment Appeal Tribunal (2021). Web.
Employment Relations Act 1999. Web.
Employment Rights Act 1996 (1996) Web.
Equality Act 2010 (2010) Web.
Equality and Human Rights Commission (2021) Article 10: Freedom of expression. Web.
Equality and Human Rights Commission (2021) Article 9: Freedom of thought, belief and religion. Web.
Gardner, J. (2018) Equality for the few: A critical analysis of the Equality Act 2010 (U.K) from the perspective of gender equality in the workplace. Master thesis. Umea University.
Ginsberg, J. (2021) ‘Protecting the freedom of speech’, in C. L. Riley (eds.), The free speech wars: How did we get here and why does it matter? Manchester: Manchester University Press, pp. 23–29.
Government Equalities Office (2011) The Equality Act, making equality real. Web.
Harvey, E. (2021) ‘In a diverse society, is freedom of speech realisable?’, in Burton, E. and Riley, C. L. (eds.), The free speech wars: How did we get here and why does it matter? Manchester: Manchester University Press (pp. 53–62).
Heymann, J., Sprague, A., Raub, A., & Moseneke, D. (2020) ‘How far has the world come?’, in Advancing equality: How constitutional rights can make a difference worldwide. Oakland: University of California Press, (251-271).
Himmelweit, S., and Stephenson, M.-A. (2019) ‘Why assessing the equality impact of economic policies matters’, in Himmelweit, S., Konzelmann, S., Smith, J. and Weeks, J. (eds.), Rethinking Britain: Policy ideas for the many. Bristol: Bristol University Press, pp. 24–28.
Kurnatowska, M. and Farr, R. (2021) ‘Philosophical belief: Managing opposing beliefs in the workplace – what employers need to know’, Employment law Journal, 222.
MacKinnon, C. A. (2020) ‘Equality’, Daedalus, 149(1), 213–221.
Making rights work. (2018) Institute of Employment Rights Journal, 1(1), 31–38.
Mason, A. and Minerva, F. (2020) ‘Should the Equality Act 2010 be extended to prohibit appearance discrimination?’, Political Studies.
McCloskey, D. N. (2019) ‘In equality is not unethical if it happens in a free society’, in In why liberalism works: how true liberal values produce a freer, more equal, prosperous world for all. London: Yale University Press, pp. 197–203.
Moses, C. (2017) ‘How equal is the Equality Act 2010? A critical assessment of the effects of harmonisation of discrimination law with regard to age and disability claims’, University of Leicester School of Law Research Paper, 17(1).
Old Square Chambers (2021) Forstater v CGD Europe & others UKEAT/0105/20/JOJ, Web.
Owens, D. (2019) ‘The uncertain future of UK labour law: ‘one step forward and one step back’ is getting workers nowhere’, Socialist Lawyer, 82, 30–35.
The employment relationship (2020) Institute of Employment Rights Journal, 3(1), 62–72.
Warner Goodman (2021) Are gender critical beliefs protected by the Equality Act 2010? Web.
Yowell, P. (2021) The future of equality. London: Policy Exchange.