Building an inclusive culture that encourages open discussion is pivotal for innovation, morale and staff retention. At the same time, it’s important to set expectations with your staff about respectful and appropriate communications, both online and in the workplace. We look at the rise of ‘culture wars’ in the workplace and how HR leaders can strike a balance between promoting freedom of expression and minimising legal and business risk.
Contents:
Understanding culture wars
‘Culture wars’ are conflicts or disputes about major social and political issues that typically polarise debate. Examples include national elections, climate change, pandemic responses, racial inequality and LGBTQ+ rights. Recent years have seen an increase in culture wars in politics and the media. The rise in populism and expansion of social media platforms have contributed to this.
A developing trend is the impact of culture wars on the workplace. Employees might post opinions or beliefs about polarising topics on social media platforms such as X, TikTok, Facebook or LinkedIn. Alternatively, they may use workplace productivity tools such as Slack, Teams or Google Hangouts to express their views on topics or debate with co-workers in the office.
Cultivating a workplace culture that promotes open communication has benefits for productivity, innovation and employee engagement. However, if employee beliefs are controversial or risk starting a culture war within your workplace, there can be serious disruption and legal risk. Formal action against an employee may be needed to protect your business, but it’s important to first look at this in the wider context of freedom of expression and employment law protections.
Freedom of expression and equality
In the UK, everyone has the right to freedom of expression as a basic human right. This means that anyone can share their ideas and opinions without censorship, even if these beliefs offend, shock or disturb others. There are some limits on freedom of expression, for example for hate speech, intimidation and harassment, but in general it’s a wide-ranging right.
In the workplace, freedom of expression is enhanced by employment laws that protect employees against discrimination under the Equality Act 2010 (EqA). This means employees are protected against dismissal or less favourable treatment compared to another because of a ‘protected characteristic’ - this includes someone’s ‘religion or belief’.
In the context of culture wars in the workplace, there has been increasing focus on the meaning of someone’s ‘belief’ and whether a belief is protected under the EqA. This is because of the increase in workplace disputes reaching employment tribunals where an employer has taken action against an employee for airing their beliefs (eg disciplinary action or dismissal) and the employee claims this was discriminatory because their belief is protected under the EqA.
There is no definition of a ‘belief’ under the EqA, so employment tribunals have had to interpret its meaning. To be protected as a ‘belief’ under the EqA, the belief must be:
- genuinely held and not just an opinion;
- cogent, serious and relate to an important aspect of human life or behaviour; and
- worthy of respect in a democratic society and not in conflict with others’ human rights.
Some examples of ‘beliefs’ that have been found to be protected under the EqA include expressing gender-critical views, belief in man-made climate change, ethical veganism and opposing critical race theory. Although context specific, these examples show that businesses must act with caution when responding to how employees disclose their beliefs - employee beliefs may be protected under the EqA and taking action against them for sharing those beliefs could lead to employment claims. We expect the scope of protected beliefs to widen as employment tribunals continue to rule on culture war cases.
Challenges and risks
Although freedom of expression can have positive effects on your workforce, there are many reasons why you will want to put in place guardrails for how employees should behave. Legal and business risks include:
- Brand damage: Comments made by employees, especially on public platforms like LinkedIn, can be seen as representative of your business, leading to reputational harm. High risks also apply for content streaming sites like YouTube and TikTok where content can reach wide audiences and go ‘viral’ overnight.
- Customer and supplier relations: Stakeholders may distance themselves from your business if they think you are endorsing certain views, resulting in loss of customers and suppliers and disruption to your business.
- Employee relations: Employees may raise grievances, complaints and bring employment tribunal claims if they are offended by the opinions or beliefs of their co-workers. There may be discrimination or health and safety risks depending on how extreme the views are.
- Employee morale and retention: Workforce morale may suffer and you may lose valuable employees if they feel you are not handling conflict effectively or failing to make a statement about an important social issue.
- Productivity: You may see a dip in productivity from employees who spend excessive time engaged in debate and discussion during working hours. This could spread among teams and lead to poor service levels for your customers.
- Defamation and breach of confidentiality: If employees post views about other individuals including co-workers or post beliefs about your business practices, there may be defamation risks or breaches of confidentiality.
- Time and resources: All the above can divert significant management time away from your business and expose you to additional costs. Whether it’s having to instruct a PR agency for damage control purposes or attending an employment tribunal as a witness, the sensitivity around culture wars can deplete your business of vital resources.
Solutions
Given the risks of culture wars in the workplace, don’t be afraid to take action to protect your business - our employment team is on hand to help. Depending on the seriousness of the matter and damage to your brand and stakeholder relationships, try to explore both preventative and corrective measures that allow you to balance the employee’s freedom of expression against the risks to your business:
- Strengthen your employment contracts. Include specific terms and conditions in your employment contracts about employee behaviour. This will help to discourage inappropriate behaviour and you will be able to point to the behavioural expectations in the employment contract if you have to take disciplinary action against an employee. You could include a specific restriction against engaging in behaviour that damages your brand or relationships with customers and suppliers.
- Build a social media policy. Develop a comprehensive social media policy that outlines expectations for respectful communication. Give examples of behaviour in your social media policy that would amount to misconduct (eg hate speech, sharing confidential information, making disparaging comments about your business and customers). Make sure the policy covers professional networking sites like LinkedIn, including ownership of LinkedIn accounts and the potential impact on your business reputation from inappropriate use. Require staff to use disclaimers on social media staff confirming that their views are personal and not those of your business.
- Review other policies. Build behavioural expectations into your wider workforce policies. For example, your IT policies should cover appropriate use of your IT and communication systems (eg email, internet access, use of social media during working hours, workplace productivity tools etc). Your diversity and inclusion policies could acknowledge freedom of expression and belief but emphasise the need for respect for others in the workplace and zero tolerance for bullying, harassment and discrimination of others.
- Train your staff. Integrate behaviour and social media use training into your recruitment and onboarding programs. Develop an anti-harassment training program to equip employees with the knowledge to participate in nuanced discussions respectfully. Periodically provide refresher courses to keep employees up to date about the expectations of your business. Consider culture trainers or consultants to keep your training up to date. Together with your policies, dynamic and up to date training is a great way to demonstrate that your business takes reasonable steps under the EqA to avoid discrimination.
- Set your organisation’s tone. Acknowledge the emotional sensitivity of high-profile or divisive topics without taking a direct stance. This will help you foster an environment where diverse opinions are respected but without taking sides. Develop a careful communication strategy that communicates the company's commitment to fostering open dialogue while maintaining a neutral stance on sensitive issues. There will of course be situations where you wish to provide your organisation’s stance to support members of your workforce affected by a topic (eg the Black Lives Matter movement) - you will always be the best judge of what’s appropriate for your organisation. Encourage your C-Suite to lead on behavioural standards by example, demonstrating professionalism and respect in their own public and private communications.
- Handle conflict sensitively. Approach controversial views with sensitivity, recognising the potential for deeply held beliefs among employees. Avoid immediate disciplinary action and instead suggest an open dialogue to understand the source of an employee’s belief or opinion. Encourage HR to act as mediators, facilitating constructive conversations and seeking informal resolutions where possible. When investigating matters, try to appoint investigators who are neutral towards the employee’s beliefs to reduce bias in the process.
- Take action if necessary. Swiftly address inappropriate conduct to prevent brand and reputational damage. Be fair and consistent in how you are treating beliefs and opinions as potential misconduct and follow a disciplinary process when opinions or beliefs cross the line into unacceptable behaviour. Seek legal advice if there is high risk and complexity, particularly if the opinions and beliefs may be protected under the EqA and you are thinking about starting a disciplinary process or dismissal. Try to consider alternative resolutions throughout, such as coaching or employee training.
Conclusion
Expression of personal beliefs in the workplace is highly nuanced. An inclusive and open culture will maintain your reputation as an employer of choice. At the other extreme, potentially divisive discussions and social media comments may pose legal and commercial risks for your brand and operations.
Strengthening contracts, updating policies, and investing in comprehensive training can help foster a respectful and open workplace culture. If you would like support to implement any of these measures, our employment team can help.
