Journal Article

Free Speech Rights at Work: Resolving the Differences between Practice and Liberal Principle

Paul Wragg

in Industrial Law Journal

Volume 44, issue 1, pages 1-28
Published in print March 2015 | ISSN: 0305-9332
Published online March 2015 | e-ISSN: 1464-3669 | DOI: https://dx.doi.org/10.1093/indlaw/dwu031
Free Speech Rights at Work: Resolving the Differences between Practice and Liberal Principle

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ACAS reports increasing disciplinary action against employees over expression that employers dislike. Given the prominence of social media in contemporary life, this is a significant current legal issue yet one which has attracted relatively little academic comment. This article examines the compatibility of unfair dismissal doctrine in this context with traditional liberal principle. Arguably, doctrine provides only flimsy protection. Although the common law recognises the importance of individual autonomy generally when determining rights claims, this well-established liberal value appears to have little influence on unfair dismissal doctrine. The dominant academic view on realising greater workplace human rights protection through greater application of the proportionality principle is unlikely to address this problem; reconceptualisation of the substantive free speech right at stake is required. This article offers a strategy on how this might be achieved—and so how differences between practice and principle might be reconciled—through a sympathetic reading of the Strasbourg and UK jurisprudence and potential policy-maker intervention.

Journal Article.  11096 words. 

Subjects: Employment and Labour Law

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