The story of The Color Purple last week could have been a question set by an examiner for would-be lawyers studying employment law. While we do not know the exact circumstances of that particular situation, it brings to mind the Supreme Court case of Lee v Ashers Baking Co Ltd, a case based on sexual orientation discrimination laws versus the freedom to express religious views.
This became a national story when a bakery refused to provide a cake iced with “Support Gay Marriage” due to the bakers’ objection to gay marriage on religious grounds. A claim of unlawful discrimination on the grounds of sexual orientation was brought against the bakers.
There were two conflicting rights; those of the bakers to express their religious beliefs, and the rights of customers not to be treated less favourably because of their sexual orientation.
The Supreme Court found that the bakers had not acted unlawfully. The court said that the claim against them must fail; due to their religion, they wouldn’t ice a cake with those words whether the customer was homosexual, heterosexual or otherwise.
There is also the principle of freedom of speech. Surely anyone can express their own, honestly held belief on any subject? The simple answer is that they can – provided that the law does not otherwise prohibit it.
Our laws have numerous prohibitions and restrictions on what a person cannot do and say, which are usually obvious. Cases such as Lee, however, which took some lawyers by surprise, show that it isn’t always straightforward.
What protection does someone who wishes to express an opinion really have? In the employment law context, much will depend on whether the person is an employee, self-employed and performing services under a contract personally, or something in-between called a “worker” – one who is neither an employee or genuinely self-employed: think of the Uber cases that have been reported during the last few years.
Employees may have protection from unfair dismissal, if of course they have been dismissed. Being dismissed for expressing an honestly held view may sometimes be an unfair dismissal, sometimes not. However, unless the dismissal falls within an exception, such as being linked with whistleblowing, the employee needs to have been employed by the same employer for two years to have this type of protection.
“Workers” and self-employed people working under a personal contract don’t have this protection, though they may have the same rights not to be unlawfully discriminated against as if they were employees – so for example on the grounds of their sex, race, disability, sexual orientation and religious beliefs.
In the acting world, an individual may sometimes be an employee for employment protection purposes and have “full” rights. However, how many actors will stay with the same “employer” for two continuous years?
Even if they are either “workers” or self-employed, they still have rights not to be discriminated against.
Whether they are employees, workers or self-employed, the question will always be whether any perceived unfairness or discrimination is, legally, unlawful, and any examiner who sets such a question will expect the student lawyers to address all the numerous, complex and sometimes conflicting issues that this area throws up.
Nick Hall is a solicitor and Partner at Hewitsons LLP, Solicitors, specialising in employment law. He heads the employment team at Hewitsons and advises on all aspects of contentious and non-contentious employment law and practice