FSU wins substantial compensation for bank manager sacked in free speech row
The Free Speech Union racked up another significant legal victory at the employment tribunal (ET) last month, securing what promises to be a significant pay-out for a dyslexic Lloyds bank manager sacked in a free speech row!
Carl Borg-Neal, 57, was unfairly dismissed and subject to disability discrimination when Lloyds Bank sacked him for using a racial slur during a workplace-based diversity training session. He is now likely to recover damages for past loss of earnings, future loss of earnings, a pensions award, compensation for discrimination and compensation for personal injury, all amounting to a significant sum.
In July 2021, Mr Borg-Neal was one of around 100 senior Lloyd’s managers who logged on to an online training session entitled ‘Race Education for Line Managers’. Provided by an external organisation, the training formed part of the bank’s ‘Race Action Plan’, launched in the wake of George Floyd’s death the previous year.
Carl had worked for Lloyds Bank for 27 years without issue, was popular among colleagues, and had risen to a highly technical managerial role at head office. Far from being indifferent to racial equality, he had recently joined a new scheme mentoring young colleagues from ethnic minorities and was working with three mentees, one of African descent, one of Asian descent and one of European (non-UK) descent.
At the start of the session, the trainer read out a script that established the parameters for what was to follow. “When we talk about race, people often worry about saying the wrong thing,” she said. “Please understand that today is your opportunity to practice, learn and be clumsy… The goal is to start talking, so please speak freely, and forgive yourself and others when being clumsy today.”
At a relevant point during a subsequent discussion on ‘intent vs effect’, Mr Borg-Neal decided to take the trainer’s statement at face-value and “speak freely”. Thinking partly about rap music, he asked how as a line manager he should handle a situation where he heard someone from an ethnic minority use a word that might be considered offensive if used by a white person. Met with a puzzled look from the trainer, he added, “The most common example being use of the word n***** in the black community.”
Carl didn’t receive a response to his ‘clumsy’ question. In fact, he was angrily berated by the trainer. He tried to apologise for any offence, but was told if he spoke again he would be thrown off the course.
Other managers on the course complained that Carl’s question never received an answer – indeed, anonymous feedback collated after the session suggests the trainer’s behaviour was not particularly well-received. “I was shocked by the manner and tone used by one presenter to a colleague,” said a respondent. “After saying at the beginning this would be a safe environment and [acknowledging] we may make mistakes, she launched into a vitriolic attack… I believe [Mr Borg-Neal] was trying to ask a valid question to aid understanding.”
After the course, the trainer claimed she was so offended by use of the n-word that she was too sick to work and took five days off. The provider then complained to Lloyds Bank.
It was the fact that the trainer needed to take time off that triggered an investigation, with the bank subsequently accusing Carl of racism and launching a disciplinary process that led to his dismissal for gross misconduct.
After 27 years, his career lay in tatters.
Following an unsuccessful attempt to appeal Lloyd’s decision, Carl joined the Free Speech Union. Having reviewed the case, we instructed Doyle Clayton – an expert firm of employment solicitors – who brought a claim against Lloyds Bank in the Tribunal.
Something that emerged particularly strongly from the hearing was the extent to which Lloyd’s focused on Mr Carl Borg-Neal’s use of the n-word in isolation, irrespective of the context in which he’d used it.
For instance, the initial HR caseworker talked to colleagues from the bank’s Inclusion and Diversity team “to understand the impact of the word used on session attendees”. The disciplinary Hearing Manager then spoke to witnesses “to understand the impact of use of the term on the facilitator”. During the appeal process, the new Hearing Manager also focused on the impact that use of the n-word had had on the individual carrying out the training.
It was on the basis of this semantic fixation that the bank could concede that Mr Borg-Neal had not intended to cause any hurt, that he asked the question with no malice, and that the question itself was valid, but then still dismiss him for gross misconduct. The bank’s argument was that Mr Borg-Neal should have known better than “to use the full word in a professional environment”.
However, thanks to top-drawer representation from Doyle Clayton, we were successfully able to steer the panel towards an appreciation of the wider context in which the n-word had been uttered.
Explaining its unanimous decision to rule the dismissal unfair, the panel noted variously that: the incident had taken place during a race education session, and specifically during a discussion of ‘intent versus impact’; it was a well-intentioned relevant question regarding how to handle a situation of racially offensive language in the workplace; there was no suggestion that he was taking an opportunity to say an abusive term under cover of a question; and that his dyslexia affected his ability to formulate his question carefully.
Lloyds Bank also relied heavily on the suggestion that Mr Borg-Neal had demonstrated a lack of concern for the impact of his actions on others. According to the Hearing Manager, it was “because of the absence of any deeper acceptance as to why [Mr Borg-Neal’s] use of the word was so inappropriate [that it was] difficult to make the case that action short of dismissal such as further training or removing [him] from a position of influence as a role model would be sufficient”.
The panel was distinctly unimpressed with this line of reasoning. “This is an unusual distinction given that the claimant had repeatedly apologised,” they wrote. “He told [the Hearing Manager] that he understood in hindsight that the trainer could be upset. He said a friend had told him use of the word was inappropriate and ‘I get that now’. He said he understood his conduct had fallen below expectation. One wonders what was expected of him.”
Almut Gadow fundraiser – show your support!
It’s heartening to see so many people making contributions to former law lecturer and Free Speech Union member Dr Almut Gadow’s legal crowdfunder. (Click here to take a look at the supportive comments that donors have been leaving on Dr Gadow’s page.)
Supported by the Free Speech Union, Dr Gadow is bringing a case against the Open University (OU), arguing that she was harassed, discriminated against and unfairly dismissed because she rejects gender identity ideology.
Almut was sacked by the OU after questioning requirements to embed gender identity in the institution’s law curriculum. During the academic year 2021-22, the university’s equality, diversity and inclusion team announced plans to “incorporate its political ideologies” across the curriculum. The “liberating the curriculum” policy that resulted was, Almut says, “effectively a checklist of ideological compliance”.
Dr Gadow raised concerns about various requirements, including introducing diverse gender identities into the curriculum and teaching students to use offenders’ preferred pronouns. She argued that a criminal lawyer’s role “is to present facts” and that “sex is a relevant fact for offences involving perpetrators’ and/or victims’ bodies”. Dr Gadow also made the case that “no offender should be allowed to dictate the language of his case in a way which masks relevant facts”.
To her disbelief, managers who spotted these forum posts described her requests for engagement as “serious insubordination” and accused her of creating an environment not “inclusive, trans-friendly or respectful”. Months later, her posts were cited as reasons for her dismissal.
This is the Free Speech Union’s most ambitious crowdfunder yet, and for good reason: not only does Almut deserve justice for the egregious way she’s been treated, but this case provides the best opportunity yet to establish a legal precedent in favour of academic freedom that will protect all British academics.
The concept of academic freedom is robustly protected at an international level and includes protections for scholars who question curricula or criticise their institution. But the UK courts have yet to properly consider how this European case law applies at the domestic level.
In seeking judicial guidance from an English employment tribunal – and by arguing that belief in academic freedom should be a recognised protected belief under the Equality Act 2010 that is ‘worthy of respect’ – in the same way gender critical beliefs are – we hope to set a precedent which will entrench academic freedom protections domestically.
We also think that Almut’s case will give the tribunal an opportunity to explain how well-understood concepts of employment law, such as reasonableness and proportionality, are modulated and influenced by the significant international law protection for academic freedom in such a way as to make it harder to dismiss other academics in the future.
Almut’s legal crowdfunder is now just £6,500 short of its initial £70,000 target. This first tranche of money will cover the cost of the preliminary hearing, disclosure of documents and preparation of a trial bundle.
If you can, please donate and help Almut launch a case that in the words of Prof Kathleen Stock, “will be of great significance, not just to University staff, but to the young minds they teach in future” – the link to the legal crowdfunder is here.
FSU releases new research briefing on the B Corps movement
We’ve been investigating the chilling effect on workplace free speech of the B Corps movement, which counts nearly 2,000 companies operating in Britain among its members. (You can read our report here).
The movement originated with B Lab Global, an American non-profit set up in 2006. It now has branches called B Labs all over the world, including the UK.
To become a B Corp-certified company – a kite mark provided by your local B Lab, a bit like becoming a Stonewall Diversity Champion – the directors must go beyond maximising profits and commit to serving ‘people’ and the ‘planet’.
That sounds benign and well-meaning, but certification involves a company changing its Articles of Association to include a commitment to meeting social and environmental targets, both internally and externally. For instance, the B Corps framework assesses a company against B Lab’s principles of justice, equity, diversity and inclusion – or JEDI, for short.
Among other things, that means making a commitment to ‘racial justice’ and Net Zero and that, in turn, can lead to employees or customers who don’t share those values being penalised – a good example being Nigel Farage’s defenestration by Coutts, a B Corp-certified company.
The Free Speech Union is concerned that the B Corps phenomenon is accelerating the adoption by British companies of contentious political ideas like critical race theory and gender identity ideology.
We know from experience that this ideology is often enforced with authoritarian zeal.
What is particularly worrying is that B Lab UK, the British arm of this movement, is lobbying for a new Act of Parliament that would mean British businesses have to comply with this ideology and impose it on their employees and customers – even their suppliers.
If UK law is changed whereby all British companies have to incorporate B Corps principles into their operations, the Equality Act 2010 might have to be amended to dilute workplace protections for employees’ speech rights, so that certain beliefs – such as a belief in the reality of biological sex – would lose their ‘protected’ status.
NHS Trust responds to FSU over unlawful trans policy
Free Speech Union General Secretary Toby Young wrote to the South Tyneside and Sunderland NHS Foundation Trust last month in relation to its new ‘Transitioning at Work and Gender Diversity Policy’. The policy came into effect a few weeks ago and, having reviewed it, we believe it must be withdrawn and substantially amended as it appears to discriminate against NHS employees with gender critical beliefs. (You can read Toby’s letter here.)
One of the fundamental problems with the policy is its definition of the term ‘transphobia’: “The fear or dislike of someone based on the fact they are Trans, including denying their gender identity or refusing to accept it. Transphobia may be targeted at people who are, or who are perceived to be, Trans.”
Trans employees and service users should, of course, be free from discrimination and harassment. But given that the Trust says it “does not accept transphobia in any form”, an employee “refusing to accept” a trans person’s “gender identity” – e.g., a Muslim or a gender critical feminist – will face being disciplined or worse. This effectively creates an intimidating, hostile, degrading, humiliating or offensive environment for any employees who believe that sex is binary and immutable – a protected belief, don’t forget – which is contrary to Section 26 of the Equality Act 2010.
We think this definition of ‘transphobia’ is too broad and the accompanying statement that the Trust does not accept it “in any form” is, as a result, too dogmatic. It is perfectly possible to refuse to accept that a trans person has changed their gender because, according to your belief, sex is binary and immutable, but nevertheless treat that colleague with dignity and respect. It is that standard which the NHS should uphold, and not insist that employees should “accept” something that runs contrary to their beliefs.
The Trust creates further problems for itself by giving examples of ‘transphobic’ behaviour, which it says it will not tolerate “in any form”:
- A trans-woman… referred to as ‘he’ despite having requested to use the pronoun ‘she’;
- Refusing to use the same facilities as a Trans or Non-Binary member of the team;
- Refusing to use the pronouns of the affirmed gender of a colleague.
Setting aside the fact that compelling employees to use the preferred pronouns of their trans or non-binary colleagues may be a breach of Article 10 of the European Convention on Human Rights, the Trust is effectively saying that a female member of staff not wishing to use the same toilets as a biological man is ‘transphobic’ and could face losing her job.
In his response to our letter, the Trust’s Chief Executive, Ken Bremner, MBE, recognises that “there is a need to protect and to balance the competing rights of colleagues with different beliefs” and that “as part of that balancing exercise and process of continual review”, the Trust “will review the policy and consider your comments and suggested amendments when making any decisions regarding the content.”
That’s encouraging, and we look forward to seeing how South Tyneside and Sunderland NHS Foundation Trust revise the policy. As per our letter, however, should it remain the same and any of the Trust’s employees find themselves being disciplined or worse because they fall foul of it, we stand ready to support them, including by helping them take the Trust to the Employment Tribunal.
New FSU briefing on threat to free speech posed by Carbon Literacy Training
We’ve just published a briefing on carbon literacy training by Thomas Harris, our Director of Data and Impact. We’re concerned that it will have a chilling effect on free speech in the workplace in the same way that unconscious bias training and anti-racism training does, with employees reluctant to challenge the ideas behind it for fear of jeopardising their careers.
Carbon literacy training is spreading rapidly across UK offices and places of study, with over 67,000 citizens certified as ‘carbon literate’ according to the Carbon Literacy Project (CLP), the main organisation behind the initiative. (Between financial year-end September 2021 and September 2022, CLP’s income grew from £183.8k to £637.7k, an increase of nearly 250%.) The training takes it for granted that we’re in the midst of a ‘climate emergency’ and recommends that employees embrace various radical solutions, including net zero.
The Free Speech Union is concerned that this training is embedding a particular orthodoxy about climate change in British workplaces, leaving employees feeling unable to challenge it. While it’s indisputable that average global temperatures have increased since the mid-nineteenth century, people hold a range of views about the causes and severity of climate change and that in turn influences their opinion about the best way to tackle it – or, indeed, whether tackling it is possible or necessary. Different solutions to the problems created by climate change are informed by different values and recommending one approach over another inevitably involves making a political choice. There is no-such thing as an apolitical, ‘scientific’ solution. Consequently, employees should not be put under pressure to endorse a particular approach or threatened with disciplinary action if they fail to adjust their behaviour to follow this approach, particularly in their private lives.
In those companies seeking accreditation as a ‘Carbon Literate Organisation’ (CLO), up to 80% of staff are expected to become ‘carbon literate’. Carbon literate accreditation requires employees to embrace a particular view about climate change and identify at least one action they can take to reduce their own carbon footprint, as well as at least one action involving other people. The Free Speech Union fears that employees may be penalised if they refuse to comply with these requirements because they do not share a particular point of view.
A Free Speech Union member contacted us because he was concerned about the repercussions on his career after he challenged the content of the training and provided alternative views and different insights on the topic. We believe he was right to be concerned. To secure CLP’s platinum, gold, and silver CLO accreditation, companies are expected to embed carbon literacy in the annual targets of staff members and evaluate their performance accordingly. This means that employees who don’t subscribe to a particular view on climate change could find themselves missing out on pay awards or promotion unless they self-censor or pretend to hold convictions they don’t have.
The United Kingdom Accreditation Service (UKAS) is the national accreditation body for the United Kingdom. It is appointed by the government to assess and accredit organisations that provide services including certification, testing, inspection and calibration.
As carbon literacy accreditation schemes proliferate, particularly in the public sector, we believe it’s in the public interest for them to seek out UKAS accreditation. This would ensure that any concerns about the impact of these schemes on employees’ speech rights could be raised with an independent external body.
If you’re being forced to undergo carbon literacy training in your workplace and are worried you might get into trouble for challenging the climate activist agenda behind it, you can contact Thomas Harris at the Free Speech Union here.
Supporters – join now to avoid increased membership fees!
The Free Speech Union is going to be putting up its membership fees later this month, the first time they’ve been raised since we launched three years ago. They’ll only be going up by 20%, lower than the rate of inflation in those three years, but we need to increase them if we’re to continue offering our members the same benefits, which can include expensive legal support.
Which makes this an excellent time for supporters – those of you who have signed up to receive our monthly newsletters, but don’t currently pay membership dues – to join. Not only will you be able to join at the current rate, but you won’t be charged at the new rate until after 1st October 2024. That’s right – for all those who’ve already joined by the time the price goes up, we’ll be locking in the old price, which means you won’t be charged at the new higher rate for at least a year.
As a member of the Free Speech Union, not only will you get top level support if you get into difficulty for exercising your right to lawful free speech, as well as invitations and discounted tickets to all our events and our weekly newsletters. You’ll also get exclusive access to our premium content. At the moment, everything on our website is free, but when we relaunch it later this month we’re going to be restricting access to our premium content – such as our FAQs on what to do if you’ve been de-banked and our extended interviews with world famous free speech champions like Douglas Murray and Kathleen Stock – to our members.
So, if you’re a supporter who values the work we do and you want to join the fight the defend free speech, please join today. We’ll be relaunching the website and increasing our membership fees on Friday 15th September. And remember – if you join before the prices go up, you won’t be charged at the new rate for at least a year.
You can join by clicking here.
Is there a left way back from woke? Online tickets still available!
In-person tickets have now sold out for our next event, ‘Is there a left way back from woke?’, with Professor Umut Özkirimli on Wednesday 13th September in London. But if you’d like to attend virtually, you still can – watching the event online is free for Free Speech Union members.
The link to register for the Zoom feed is here.
In his provocative new book, Cancelled: The Left Way Back from Woke, Professor Özkirimli describes how the Left has been sucked into a spiral of toxic hatred and outrage-mongering, retreating from the democratic ideals of freedom, tolerance and pluralism that it purports to represent.
Professor Özkirimli will be joined in conversation by two eminent public intellectuals. Professor Alice Sullivan has been instrumental in providing evidence that clarifies the need to preserve sex-based social categories in data-collection and policy-making, while Dr Ashley Frawley is one of the most interesting contemporary critics of identity politics.
Latest episode of the FSU’s weekly podcast is out now!
Thank you to everyone who has helped That’s Debatable! pass the important milestone this month of 10,000 downloads!
On this week’s episode, hosts Tom and Ben interview Dr Almut Gadow about her impending legal battle with the Open University, and discuss Denmark’s proposed ban on burning the Koran and other religious texts, as well as the free speech concerns raised in our latest briefing paper on Carbon Literacy Training (interestingly – and revealingly – called Carbon Emergency Training in Scotland).
The episode is available to download for free by clicking here.
FSU’s assistance helps teacher resume career following crime report
Great news for our member, Will T. Will is a qualified teacher for whom a minor, random complaint (following a classroom discussion about religion) many years ago resulted in a local police report. Despite the fact that this report was closed quickly with no further action, Will found himself unable to continue in his profession because the existence of this report caused delays to the Enhanced DBS checks required when applying for teaching roles. With help from the Free Speech Union, this issue has now been resolved and Will is looking forward to resuming his career.
FSU writes to West Yorkshire Police over arrest of autistic girl for ‘hate crime’
A couple of weeks ago we wrote to the Chief Constable of West Yorkshire Police, John Robins, outlining our concerns about the arrest of a 16 year-old autistic girl on suspicion of committing a ‘hate crime’ for telling a female officer: “You look like my lesbian nana.”
It’s good to see that Mr Robins has now responded – hours after receiving our letter, he did the right thing and announced that West Yorkshire Police had released the girl and was dropping its investigation (Telegraph).
As we pointed out in our letter, the fact that an arrest was made in the first place raises serious concerns about officers’ lack of understanding of free speech.
According to West Yorkshire Police, the girl was arrested for a “homophobic public order offence”.
However, the girl’s behaviour simply doesn’t meet the threshold for an offence under the Public Order Act. The WPC at the centre of this incident may well have felt irritated or insulted by the girl’s remark. But there’s no evidence that the comment was malicious, and irritation is not grounds for the arrest of an autistic child.
In addition, the comment was made in her own home and, as far as we can tell from the video, the police officer was also in her home at the time.
As per the Public Order Act, a defence if a person is accused of “intentional harassment, alarm or distress” is that the accused was “inside a dwelling and had no reason to believe that the words or behaviour used… would be heard or seen by a person outside that or any other dwelling”.
Since the exchange between the girl and the female officer took place inside the girl’s home, that defence is applicable in this case.
We also expressed concern about the possibility that a non-crime hate incident (or NCHI) had been recorded against the girl’s name.
Although the case against the girl has now been closed, we are seeking assurance from West Yorkshire Police that an NCHI wasn’t recorded.
As per our letter, we repeat our call for Mr Robins’s officers to now undergo training on Article 10 of the Human Rights Act 1998 to help them better understand the importance of free speech.