Freedom of Speech and Employment

Recently we have seen the spotlight squarely placed on the issue of freedom of speech in the context of employment. The Israel Folau controversy has sparked a debate about whether he should be allowed to reproduce views or express his own, contrary to the views supported by his employer. It has led to discussion about the adequacy of legal protections for freedom of speech and religious freedom.

A long-held premise in the area of employment is that an employer has a right to regulate employees out-of-hours conduct where that conduct has a sufficient connection to the employment relationship. There are three situations which can warrant disciplinary action or dismissal:

• The employee’s conduct is likely to cause damage to the relationship of employer and employee;
• The conduct causes damage to the employer’s interest; or
• The conduct is contrary to the employee’s duty to the employer particularly the duty of fidelity and good faith.

There is no doubt that the extensive use of social media in recent years has brought the issue of freedom of speech in the employment context well and truly to light. Recent authorities have made it clear that the use of social media that is contrary to an employer’s interests, or is vulgar, careless and shows an absence of judgment can constitute a valid reason for dismissal.

Generally speaking, there is a fine line between an employer taking action against an employee for breach of a social media policy or flouting the employer’s legitimate behavioural expectations (which is lawful) and taking action against an employee expressing their political or religious beliefs (which is unlawful).

In summary, the law in relation to dismissal because of controversial public statements remains basically as it always has been. An employee remains subject to the employer’s reasonable lawful directions, most commonly contained in the form of policies setting behavioural expectations such as a code of conduct or social media policy. The freedom to make controversial public statements sits alongside the freedom to continue (or terminate) the employment relationship. The question will always be, has the imaginary line been crossed.

For specific advice regarding the issue of freedom of speech and employment, please consult your solicitor.

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