It’s been hard for employers to escape controversy in recent years. From Brexit to BLM, the US election to the current Russian “special operation” in Ukraine, even individuals who would previously have given politics in the workplace a wide berth are now finding it hard to avoid. Add to the mix Millennials, who are typically socially engaged and social media-savvy, a blanket ban on workplace debates is no longer an option for most employers.
So how should employers balance the increasingly polarized views of their staff? And what should they be mindful of when managing these issues in workplaces outside the US?
How do you say “First Amendment” in French?
Of course, the First Amendment does not apply to private employers in the US, and the Constitution is uniquely American. But, the countries belonging to the European Union do have an equivalent—the Charter of Fundamental Rights of the European Union and its underlying Convention on Human Rights (“translated” into law in the UK by its Human Rights Act). In a workplace setting, the relevant rights are the right to respect for private and family life, freedom of thought, conscience and religion, and freedom of expression. But these are qualified rights, which can be limited by local laws intended to promote a specific legitimate aim which is necessary in a democratic society. So the concept of a balancing of rights is built into European law.
In other regions such as Asia, the picture can be more nuanced. Overarching constitutions and basic legal principles may provide for generous freedoms (similar or even stronger to what we see in EMEA and the US), but in practice, it is less common for employees to voice strong opinions in a workplace environment. Given this, employers will generally adopt the approach that a policy of neutrality is preferred and there should be no political debate in the workplace.
Where to strike the balance?
While workplace disputes about the Ukraine/Russia crisis may not yet have reached the Courts, a range of other issues have already been litigated. One high profile case in the UK has been that of an individual’s right to express their view that gender is biological, and cannot change. The individual was allowed to bring her claim that this view was a protected belief under UK law as not being fundamentally incompatible with a democratic society, which is a low hurdle (Forstater v. CGD Europe). For a view to be protected under UK and European law, it will need to be a belief or value rather than simply an opinion, it must be worthy of respect in a democratic society, and not conflict with the fundamental rights of other. This may well include a belief that Ukraine should be a sovereign democratic state, in particular where an employee has a stronger case in this regard if they had personal connections to Ukraine. Whereas one can see a Court being less willing to “protect” a view that Eastern Ukraine is part of Russia, or that the Ukrainian government has “Nazi” sympathies. But an employer can still take action against an employee who puts their belief into an action in a way that detracts from others’ rights (and a final decision is expected shortly in the Forstater case, where the employee refused to use employee’s non-birth genders).
In terms of visible symbols of support for one side in the conflict, the European Court of Justice has held that a ban on wearing signs of a political, philosophical, or religious belief is valid so long as it is consistently applied, whereas in the UK, the Courts have required employers to adjust policies where there was a greater adverse impact on certain protected groups, such as Muslim women. But with respect to the Ukraine/Russia crisis, an employer would be best advised to ask all employees to refrain from showing any visible signs of support for one side or the other.
And in this particular conflict, it is clear that nationality and race discrimination could also become an issue, in particular if Russian employees are stigmatized or find the workplace hostile, where a workplace conversation or WhatsApp debate about the conflict or the Russian government spills over into criticism of Russian society or makes assumptions about the views of individual Russians.
These principles may not apply in the same way to other regions. But, an approach of showing respect to individual views, whilst requiring respect and mutual tolerance in how these are expressed, will do double service in minimizing both legal issues and damage to employee relations. When facing employee conflict situations, employers should take the local temperature before taking stronger action such as discipline. Previous cases on religion and belief show us that even where the principles of freedom of expression and belief look the same in different countries, where that balance is struck differs significantly even within Europe. And while sentiment in Europe and the US may be predominantly pro-Ukraine, that cannot be assumed in countries such as China. And employers should always be mindful of specific individual circumstances (such as family connections to Russia or Ukraine), as well as their company’s own stated record, with many companies having publicly expressed their disapproval of Russia’s actions.
What does a global policy look like?
In our view, it is possible for employers to adopt a “one size fits all” policy that employees should:
- Avoid engaging in political discussion where they are aware they may cause offence to a co-worker (or for that matter, a customer, supplier, or member of the public).
- Be respectful and measured when engaging in discussions, being mindful that they are still engaging as an employee, and potentially representing their employer, even when giving their personal views.
- Pay special attention to views expressed in social media, IMs, or other electronic communications, where messages may reach a much wider audience than intended and may quickly become inflammatory.
- Where they feel that the wider company does not reflect their personal concerns, raise these issues with HR or preferably, come up with concrete recommendations together with their employer’s relevant affinity group, or ERG. Facilitated or mediated discussions may be a better way to go than an enforcement route, which was the approach taken by some companies after finding internal opposition to the BLM movement.
- Employers can refer to their existing anti-harassment, social media and IT usage, and anti-solicitation policies, without the need for a specific policy on political discussion in the workplace.
The limits to a global policy
Employers will need to take a more locally driven approach where workplace disputes cannot be contained, or an employee oversteps the mark and disciplinary action is in prospect. Where a local court would draw the line will differ not only based on local law, and also, given the subjectivity of cases of the law on “belief,” by the state of the conflict at that point and the Court’s own sympathies.
Future controversy—a risk, and an opportunity
Controversy is never far from the modern workplace. This may be amplified by the rise in hybrid and remote working, and cross-border connections, as more of the debate around these issues moves online with an increased risk of misunderstandings and cultural clashes. Rather than avoid these issues entirely, the future of the workplace may be a more engaged employer facilitating these types of discussions in a measured way.
Perhaps this can even be an opportunity for an employer to demonstrate its core values (including mutual respect for divergent opinions), which employees say is increasingly a differentiator in the war for talent.