Beware the employee activists threatening to bring down British business

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3 hours ago

Employers have perhaps never faced more challenging or extensive legal obligations than those present today.
From the forthcoming Employment Rights Bill that is set to become law later this year to the rise of sensitive social and political issues within the workforce, our recent survey of more than 500 businesses found there is a new legal landscape that many employers are struggling to navigate.
First, there is the issue of cost. Some 81pc of employers told us they expect the Employment Rights Bill to increase business costs, with 47pc intending to meet these by scaling back on future recruitment plans and a third saying they intend to make headcount reductions among current staff.
Second, there is a knowledge gap. 58pc of employers said they knew little to nothing about the legislative changes coming in, despite it being described by the Government as 'the biggest upgrade to workers' rights in a generation'.
Third, we found that even when employers think they understand the changes, many are confused about what they are actually required to do. For example, although broadly supportive of more stringent protections against sexual harassment, employers are barely able to distinguish between the existing law and the new provisions that are being introduced, our survey found.
This was also true of issues like trans rights, which 64pc of respondents told us they felt 'well prepared' to deal with. But our survey was conducted shortly before the Supreme Court handed down its seminal decision on the meaning of 'sex' under the Equality Act 2010.
From the intense public interest the decision has generated, it is reasonable to assume that not all employers may have judged this correctly.
Why does any of this matter?
Well, for one thing, because getting it wrong can end up in expensive and reputation-damaging litigation that an employer is unlikely to win if they have not been paying attention to their obligations. And if employers already think the Bill is going to drive up business costs, then finding themselves in court won't help.
But it also matters because we found that employers are confronting an increasingly politicised workforce where issues that may have no relationship to the workplace itself are becoming topics of intense debate. For every social issue we asked about, from climate change to Israel and Gaza, employers told us it had at least doubled in salience in recent years.
And this was particularly likely to be the case if the employer had taken a position on certain issues in the past (say the Ukraine War or Black Lives Matter). We found that once the employer expressed a view on one issue, the more likely they were to be expected to have a position on every issue.
This means employers are increasingly being drawn into contentious issues where strongly held views may conflict, and there is a heightened imperative to strike the right balance between competing perspectives.
And yet we found that employers are very often getting that balance wrong.
Take, for example, the use of social media. Almost 40pc of employers who have a social media policy told us that they routinely reviewed the social media posts of staff and a quarter told us that they had either sacked or disciplined a current member of staff on the basis of something they had written online.
Asked why they had taken disciplinary action, and almost 70pc told us that this was because they feared that what the employee had written could cause 'reputational damage' to the business. Around 60pc said it was because it could 'cause offence to other employees', roughly twice the proportion who said they had considered whether it impacted on the employee in question's ability to discharge their professional duties.
But from a legal point of view, all of this must be viewed through the prism of the Court of Appeal's landmark decision in Higgs v Farmor's School that was handed down in February of this year.
In a decision that was viewed as a vindication of free speech, the Court held that to discipline or dismiss an employee because they had expressed a religious or protected philosophical belief (here, a 'gender critical' view and criticisms of same sex marriage) to which the employer objected, could be unfair and amount to unlawful discrimination.
They said it was insufficient to say that other employees had been offended because the employer 'does not have carte blanche to interfere with an employee's right to express their beliefs simply because third parties find those beliefs offensive.'
None of which is to say that employees are free to say what they like either. The court described a balancing exercise in which relevant considerations might include whether the comments were made on a professional or personal account, whether guidance had been given about their post, what they had actually said (as opposed to what a third party may have chosen to read into it) and whether their post impacted on their ability to perform their duties.
All of which adds up to a tricky situation for employers facing a more politicised (and often polarised) workforce. Protecting one set of views against another not only risks confrontation with members of staff but could also break the law.
More than ever, employers need to prepare themselves with sound legal advice, clear internal communications with staff and a robust crisis plan for dealing with these kinds of eventualities.
Because getting it wrong in an era defined by employee activism isn't just a management problem, but one that could impact the share price, affect consumer trends or even hit the balance sheet.
Laura Farris is a former employment barrister and ex-Tory MP; Lord Andrew Cooper is former director of strategy at Downing Street. Both are partners at FGS Global
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