‘Soft Attacks on Free Speech’ refer to sanctions that individuals can face for expressing controversial views, other than those imposed by the criminal law. It is possible for a person to be denied employment opportunities, prevented from having a website, a social media account, a bank account or the right to receive payments from platforms such as PayPal, all because of their political and/or philosophical beliefs (the limited protection against this provided by the Equality Act 2010 is discussed below).
This can all occur without the state lifting a finger and without the person committing any criminal offence or tortious act. Such sanctions are far more serious than a fine or short prison sentence, which normally follow a conviction for so called’ hate speech’ offences. Consequently, they probably amount to a far greater deterrent for expressing politically incorrect opinions, than such laws.
Should the above state of affairs be permitted? Is it a consequence of free markets, freedom of association and the right of private companies to choose who they will provide services to and who they will employ or dismiss from employment?
These are important questions to answer. In answering them, one should bear in mind the teleological justification for free speech; namely the free exchange of ideas which lead to the betterment of mankind.
This article will be in three parts; (1) Employment and (2) Provision of services, with a particular focus on the internet and social media (3) The Fomenting of Boycotts.
It is all very well for one to argue, based on free market principles, that employers should be permitted to hire and fire at will. However, a contract of employment places considerable restrictions on an employee’s ability to engage in commercial activity, albeit on a voluntary basis and in exchange for a salary. In many cases the employee relies on their wages to meet basic expenditure and could not meet such expenses if they were dismissed without notice. Their contract may also have prevented them from obtaining an additional income, or this may simply not have been logistically possible.
Consequently, it is justified that an employee cannot be dismissed without cause and this is the current position in UK Law (whether or not the present position of restricting the right to bring unfair dismissal proceedings to employees who have been continuously employed for at least two years is outside the scope of this article; the laws proposed below could potentially be applied to those who have been employed for less than 2 years, as an exception, in the same way that the Equality Act applies to such persons).
Currently, under the Equality Act, it is unlawful for an employer to dismiss an employee or subject them to detriment, because of their philosophical or religious belief(s). The current law is unsatisfactory for a number of reasons:
- The Tribunal has to determine whether a belief amounts to a “philosophical belief”, which inevitably involves making value judgements. Furthermore, bearing in mind the aforesaid teleological justification for free expression, there is no justification for only protecting communications that are part of an overall philosophical belief as opposed to individual ideas and opinions.
- Only beliefs that are “worthy of protection in a democratic society” are protected, which inevitably requires the making of value judgements.
- Employers are unable to engage in “indirect discrimination” as defined by the Equality Act. This term is oxymoronic. What it really means is that if the policy of an employer, places a burden on an individual with a protected characteristic (which would include religious or philosophical belief), then the onus is the employer to justify any such policy to the Tribunal. Therefore, if an individual has a strong belief in the existence and importance of anthropogenic climate change and objects to taking business trips by air, the employer has to justify how they run their business to a Tribunal. Employees should not commence contracts of employment if they object to carrying out the specified duties; unreasonable changes to the contract of employment can be dealt with under common law and the Employment Rights Act 1996. 
- In practice, employers are able to justify their decisions on the grounds that they gave instructions to an employee not to express their beliefs, which were contravened. This applies even where the opinions were expressed outside of their employment and where they are not claiming to speak on behalf of their employer. Alternatively, they can refer to the perceptions of their clients or customer base and the possibility of losing business. If a client/customer or a group of clients/customers, threaten to, or simply, withdraw their business unless an employer dismisses an employee because of opinions expressed by that employee outside of their employment, the employer should be required to ignore such threats, which are unreasonable unless they affect the service being provided (more on that below – in many cases the employer merely reacts to the possibility of customers/clients withdrawing business). Of course, if a new law was enacted, the public would realise that an employer’s hands were tied by the same. If one considers the matter from an employee’s perspective, they have a duty of fidelity while employed and normally must work a notice period before leaving; they cannot simply leave an employer and the customers/clients in the lurch. If they fail to provide this notice period, say because they are offered considerably more money by another employer, they will be in breach of contract and potentially required to pay damages. If they are regulated by a professional body, they could face sanctions by this body. It is therefore justified to require an employer to exercise fidelity when they are faced with unreasonable economic threats from customers or clients.
With respect to 3 & 4 above, under the current law, employees who diligently perform their duty can be dismissed due to beliefs which have no direct impact on their employment, whereas employees who refuse to, based on such beliefs, potentially have legal redress. This is unfair and unsatisfactory.
Is therefore proposed that a law be enacted as set out below. In my view dismissals made in contravention of the proposed law should already be regarded as unfair. However, the law will provide additional guidance and will reverse the chilling effect on free speech, that the current status quo ante has created. Similarly, the new law would address the mischief of the chilling effect on free speech, that has been created by the current status quo ante.
I am attempting to make the concept behind the proposed law as simple as possible. Exactly how the law would be formulated would require further thought. The basic premise of the proposed law, is that an employee should not be dismissed for the expression of opinions that have no bearing on their employment, or where they only have a bearing because of unreasonable threats by clients or customers. Any communication, or series of communications, that meets the following criteria would be protected; any dismissal in response to such communication(s), would automatically be regarded as unfair.
- It is lawful, i.e. not in breach of the criminal law or gives rise to any civil liability. When such a statement is made, it will not always be clear that the statement is unlawful, pending a prosecution or civil action. Consideration could be given to permitting the employee to be suspended until liability is determined or allowing the employer to dismiss, if they can show that they reasonably believed the statement was unlawful. This criterion would in any event overlap with (c) below, so that in practice it would be (c) that would have to be considered in the majority of cases.
- The employee is not purporting to speak on behalf of the employer.
- The statement is not made about the employer or any individual or entity connected with them.
- The primary intention of the communication is not to cause commercial damage to the employer and/or the employee was not reckless as to the possibility of commercial damage being caused to their employer (the employee will not have been reckless for the purposes of this provision, if they expressed an opinion that could not have been expressed in a more anodyne manner) .
- The communication does not state that the employee will fail to perform their duties to the best of their ability and in accordance with their contract of employment (I would like to have said ‘imply’, as well but I fear this would be exploited by employers and Tribunals with politically correct leanings).
- The statement was made outside the course of employment.
Any instruction given by an employer to an employee to refrain from making protected communications, could be ignored by the employee; any dismissal for a breach of such instruction would be regarded as unfair.
A similar law, with similar criteria, could be enacted for membership of lawful organisations. The law could potentially replace the protection of religious and philosophical belief under the Equality Act.
In my submission, the above law would constitute a fair compromise between the interests of the employer, the employee and free expression. It is difficult to see how a fair-minded person, who does not wish to use economic pressure to silence those with whom they disagree, would object to the basis premise of the above law.
I have only concentrated on dismissal from employment. It would very difficult to enforce a law requiring protected communications to be disregarded in decisions to appoint employees, or one that prohibits employees being subjected to detriment. I am not opposed to such laws in principle but have concentrated on proposed laws that could be enforced, relatively effectively.
 In the Richard Page case, see note 3 below, the Tribunal opined that a belief that homosexuality was immoral was not worthy of protection.
 For the belief in manmade climate change being protected under the Equality Act, see Grainger Plc v Nicholson  IRLR 4 EAT. In principle this could be applied to the flying example I have given. The following case is a good example of the problem with ‘indirect discrimination’. A Muslim woman successfully sued a hairdresser who refused to hire her because she insisted on wearing a headscarf, see here. The refusal was due to a policy that applied to all employees, namely they had to display their hair, in order to promote the salon. The Tribunal found the employer guilty of indirect discrimination, which was not justified and awarded £4000 for injury to feelings. The burden of proof was on the employer to show that the policy was justified. The problem with this approach, is that it is not possible to quantify the positive effect of such a policy. It should however be the prerogative of the owner, especially where they have invested their own money into the business, to implement such a policy.
 This happened in the Richard Page case, see here. The Claimant was not an employee so could not sue for unfair dismissal but based on the Tribunal’s reasoning, it seemed quite clear that they would have deemed the dismissal fair.
 If for example a person tries to explain the average differences in IQ scores between different races, by relying in whole or in part on innate factors, this belief would be protected, provided they express it in a temperate manner and do not use racial slurs. This opinion is inevitably controversial and may cause offence however it is expressed, but it is an opinion that should be protected in the interests of exchanging ideas.
 Following on from the example in note 4, if a teacher said that they would not spend us much time giving students of a particular race feedback, because of their beliefs in racial differences in IQ, they have effectively renounced their contractual obligations, so such communication would not be protected.
 This would normally be easy to determine, for instance an employee of a shop, expressing unsolicited views to customers as they walk in, would not be able to avail themselves of protection. More difficult examples could be decided on their merits.