Isn’t it a disgrace that you can’t express all your half-baked saloon bar prejudices without someone wanting to make a deal out of it? This is not the way that the self-declared opponents of cancel culture put their case of course, but then, they are being pretty incoherent.
Let me help Sarah Vine and Adam Boulton, though both of them really should know better, being eminent political journalists and all that. A libertarian approach to this question would run as follows. Anyone could say whatever they liked. Any employer could sack any employee for whatever reason it chose, including whatever he or she might have said in the past. And anyone else could either lobby the employer to sack the employee or boycott the employer for having sacked the employee.
This is pretty much the system that operates in the USA. It has much to commend it as a system, but it has to be accepted that it has led to some ferocious culture wars. Off the back of a similar imagined threat, Toby Young has set up something that he grandly calls the Free Speech Union, supposedly offering to protect the livelihoods of those who come under similar attacks here.
There are Indian street hawkers who buy tattered banknotes for a discount off the naive who don’t realise that they retain their full face value. The Free Speech Union appears to be pulling a similar stunt.
Because this is not America. The employment relationship in the UK is highly regulated and the UK is separately subject to human rights legislation (though since the shrillest opponents of what they deem to be cancel culture are all on the reactionary right, it’s no surprise that they don’t advertise the way in which this helps them). Employers can’t just channel the spirit of Ayn Rand and dismiss employees. The employment tribunal awaits such cavalier employers. It would not deal with them kindly.
Dismissed employees can claim unfair dismissal in relation to either the process or the substantive reason for their sacking. The list of fair reasons is finite and short, and the only one that could normally apply is “some other substantial reason”.
Following a case in the European Court of Human Rights in 2012, the ECHR made it clear that a proper balancing act would need to be carried out that fully weighed the right to freedom of speech. It’s worth noting that the case, Redfearn v UK, was a pretty unattractive case. Mr Redfearn was a bus driver for SERCO. He was also a member of the BNP. 70-80 percent of SERCO’s customer base and 35 percent of its workforce were of Asian origin. Mr Redfearn was elected as a local councillor for the BNP, following which SERCO summarily dismissed him.
The ECHR by a majority held that the British government had, by limiting claims of unfair dismissal to those who had served a qualifying period of employment, failed to protect Mr Redfearn’s right to freedom of association in its employment law protections (It did not need to decide whether his right to freedom of speech had similarly been breached, but it seems apparent that its logic would have been identical if it had). Its starting point was “there is also a positive obligation on the authorities to provide protection against dismissal by private employers where the dismissal is motivated solely by the fact that an employee belongs to a particular political party”. The essential part of its decision was as follows:
“Even if the Court were to acknowledge the legitimacy of Serco’s interest in dismissing the applicant from its workforce having regard to the nature of his political beliefs, the policies pursued by the BNP and his public identification with those policies through his election as a councillor, the fact remains that Article 11 is applicable not only to persons or associations whose views are favourably received or regarded as inoffensive or as a matter of indifference, but also those whose views offend, shock or disturb… For the Court, what is decisive in such cases is that the domestic courts or tribunals be allowed to pronounce on whether or not, in the circumstances of a particular case, the interests of the employer should prevail over the Article 11 rights asserted by the employee, regardless of the length of the latter’s period of employment.”
In other words, it will be unfair dismissal unless the employer has such a substantial reason that the desirability of protecting the employee’s human right to free expression is overridden. That is a pretty high bar.
In reality, most employers are not going to be interested anyway. If you’re otherwise adequate at your job and you haven’t got the company’s three main clients on the phone screaming blue murder, why would they care? I mean, really? Most of you can carry on tweeting to your 803 followers, secure that you aren’t going to bring the temple down on your own head.
The Free Speech Union has been going for quite long enough for its founders to be fully aware of all this. So why are they screeching ever louder? Sherlock Holmes would deduce that this bell-pull was a rope. It certainly doesn’t seem to be for its stated aim.
The most public sacking for political views in the last few months was of a Labour mayor who expressed the (extremely tasteless) view that Boris Johnson deserved to get coronavirus. The Free Speech Union was apparently mute when her employer dispensed with her services. Only some free speech matters, it seems.
Entry level cynics would assume that it was merely a star vehicle for Toby Young. That seems too guileless to me. There is a much bigger play going on here. What’s really concerning this army of eminent journalists, who are in absolutely no danger of losing their jobs, is that to date they have formed part of an elite that determines the range of acceptable views. For the first time, they’re being bypassed. Worse, they and some of their chums in the public eye are being directly challenged.
They don’t like that. They’ve become accustomed to being opinion-formers. They’re not ready to become opinion-takers. So, in a cowardy-custard last stand, they’re affecting concern for the little people at supposed risk when expressing their views.
It won’t wash. First, the little people who are actually losing their jobs for expressing their views are conspicuously few in number and that number is not obviously growing. Secondly, it’s hardly a new problem (but these commentators were apparently entirely unconcerned when it was ethical vegans, loony lefties, CND-supporters and gay rights activists whose employment was threatened in previous generations). And thirdly, as a matter of simple observation, the ability of little people to express their views and to communicate them to a wider world, no matter how crazed, outré or offensive those views might be, has never been greater.
So the commentariat need to stop using the general public as human shields to avoid accountability. This whole fake row is simply a sign that the great and the good of the fourth estate feel the hot breath of an articulate and newly-empowered public on their necks. Good.