We scored another significant victory this week after an employer dropped plans to pursue a disciplinary hearing against a Free Speech Union (FSU) member over allegedly “non-inclusive” social media posts – the U-turn came after the company learned of our involvement, and our commitment to supporting him during (and, if necessary, after) any investigatory process.
Our member – let’s call him ‘TA’ – faced allegations of gross misconduct over his popular YouTube channel, which has amassed over 30 million views and primarily features political commentary from a mainstream, centre-right conservative perspective.
An external complaint alleged that his content incited racial hatred, supported right-wing violence, and was [gasp!] critical of the UK Government. As a result of this single complaint, he was suspended from work on the grounds of gross misconduct, for breaching the company’s social media policy, inciting racial hatred, and violating the company’s code of conduct.
Entirely unsurprisingly, given the content in question, the company (whom we cannot name) was unable to substantiate the allegation of inciting racial hatred. However, despite reaching the right conclusion on this point, the company then blotted its copy book by scheduling a disciplinary hearing to address the remaining allegations: breach of the company’s social media policy, breach of their code of conduct (specifically their inclusion and diversity policy), and breach of contract.
The company’s argument was that TA’s YouTube content posed a reputational risk due to its “non-inclusive” nature, the potential offense it could cause, and his affiliation with the Conservative Party.
During the disciplinary hearing that followed, TA raised key points based on the advice we provided.
He noted that the complaint had come from a single member of the public and was likely politically motivated, and questioned whether the same low threshold for disciplinary action was applied to all employees equally.
He pointed out that the allegations appeared deliberately vague, making it difficult for him to defend himself against them, and requested that the company identify specific videos and statements they considered problematic.
He reminded the HR investigation team that if he was dismissed for expressing perfectly lawful conservative views, the company would effectively be implying that holding membership of, and/or voting for, one of the UK’s major political parties, was unacceptable.
He also reminded them that his views had been expressed outside office hours in a personal capacity, and if the company’s social media policy applied to his private life, it might be construed by an Employment Tribunal as overly broad, intrusive, and unreasonable.
He went on to note that, following a series of significant employment tribunal rulings since 2021 – Maya Forstater v CGD Europe and Others, Ms A Bailey v Stonewall Equality Ltd, Dr David Mackereth v The Department of Work and Pensions – some of the views the company found “offensive,” such as his gender critical beliefs, were in fact protected “philosophical beliefs” under the Equality Act 2010.
Having fired these early warning shots into the bureaucratic ether, TA then unmasked his batteries, remarking quite casually, apropos of nothing much, that he was a member of the FSU, and wondering aloud whether it might interest his employer to learn that we stood full square behind him during his ongoing ordeal at their hands.
Oddly enough, the hearing was immediately adjourned. Not long thereafter, the company informed him that they would not pursue the case further, as there was no case to answer.
Speaking following his employer’s capitulation, TA said: “I was left worrying for weeks on end by my employer. It wasn’t until I revealed that I was a member of the FSU that things started changing. The advice I was given was invaluable. It was fantastic to have somebody fighting my corner. I am certain that my membership of the FSU saved my job.”
Rebekah Brown, the FSU case officer who worked on TA’s case pointed out that the case is “sadly typical” of many of the 2,700+ cases we’ve handled since 2020.
“All too often,” she said, “we see employers infringe upon the rights of employees to express their perfectly lawful political beliefs; not only within work, but in their private lives as well.”
