In the light of the recent tragic events in Paris it is
perhaps fair to say that Charlie Hebdo currently has a notoriety that it has
not always held in the past. It is understood that there has been a surge in
demand for the English version of the special edition of the magazine. However
the decision to distribute and sell that special edition may cause a series of
uncontemplated issues for the distributors and vendors of the magazine as
regards their own employees. Nicholas Siddall explores some of the issues which
may arise.
It is to be envisaged that some employees may reasonably consider
that the special edition of Charlie Hebdo (with its much reported front cover)
offensive on religious or moral grounds. It is also correct to say that others may
point to the bloodshed at the main office in Paris as raising security concerns
regarding their own places of work. How is an employer to respond to any such
concerns? Does an instruction to distribute or sell the magazine (with the
possibility of disciplinary proceedings if it is not followed) open up
potential statutory employment issues for the employer?
The starting question must be whether an instruction to
distribute/sell Charlie Hebdo is a reasonable one for an employer to issue?
There has been much discussion in the press whether the nature of the front
cover of the special edition amounts to a criminal offence under the terms of
Part III of the Public Order Act 1986 . However no criminal proceedings in that
regard have been commenced and thus it seems that the distribution of the
magazine should be treated as a lawful act. However the cartoon on its front is
one which is likely to be offensive to, at least, devout Muslims. Therefore the
envisaged contact of employees with the same perhaps ought to be considered. Whether
the magazine is placed in sealed boxes for the purposes of distribution is
likely to be relevant. Further some vendors may be considering placing the
magazine in opaque bags to avoid its staff being required to view the offensive
cartoon. The provocative nature of the magazine is additionally to be balanced
against the right to free speech which its authors seek always to advocate.
Certainly it is the defence of the right to free speech which seems to weigh
heavily in the CPS issued guidance in this area.
A further relevant issue may be the extent of any security
risk posed by the sale/distribution of the magazine. Employers may be well
advised to assess the extent of any security risk and consider what, if any,
steps that sensibly they can take to address or limit the same.
Therefore applying the venerable authority of UCATT-v-Brain it would seem well arguable
that, assuming sufficient steps are taken to have regard to the valid concerns
of the workforce, that an instruction to distribute/sell the magazine
would be reasonable.
Employers would then be well advised to consider the
potential effect of the ECHR as regards some employees and their freedom to
manifest their religion as protected by Article 9(2) ECHR. However as suggested
above this argument may need to considered against arguments as to the right to
free speech as enshrined in Article 10 ECHR. Does this consideration impact on
the reasonableness of the employer’s instruction? Of course such an assessment
is uniquely fact sensitive as made plain in the conjoined appeals of Eweida
& Ors-v-UK. However it would seem that a conscientious balancing of
the concerns of employees against the legitimate aims of the employer may
render reasonably defensible any instruction as a proportionate interference
with the Article 9 rights of any employees.
Some employees may contend that the attacks in Paris
demonstrate that the distribution or sale of the magazine involves a valid
health and safety concern which permits them to leave their place of work without
facing disciplinary sanction. This basis of such a contention would be ss44 and
100 of the Employment Rights Act 1996 (“ERA”). It is however considered
unlikely that an employee would be able to avail themselves of the protection
of those provisions. This is because they speak of “circumstances of danger which the employee reasonably believed to be
serious and imminent and which he could not reasonably have been expected to
avert…”. In the absence of cogent evidence showing a clear and immediate
risk of a terrorist attack or other incident at a particular location it must
be open to a significant degree of doubt whether the above criterion would be
met In that regard employers may be assisted by the analysis of a similar
provision in the EAT decision of Oudahar-v–Esporta.
Muslims (or non-Muslims who genuinely object to the
distribution of the magazine on grounds of its religiously offensive nature)
may contend that the instruction to distribute/sell the special edition is one
which is harassing of them by virtue of a protected characteristic. This issue
is one of particular difficulty as the question of whether an environment of
harassment exists is uniquely fact sensitive and will vary from workplace to
workplace depending on their nature and any steps that the employer has taken
to avoid/limit the extent of any offence. In that regard the guidance of the
EAT in Weeks-v-Newham College of
Further Education (given in
the context of a sexually harassing cartoon in the workplace) may be of
particular assistance to employers considering this issue.
It is in this area
that employers ought to proceed with appropriate caution. This is as harassment
can occur whether the purpose or effect of the actions of the employer violates
the employee’s “dignity, or creat[es] an
intimidating, hostile, degrading, humiliating or offensive environment”. However
in circumstances where an employer is requiring the distribution of a lawful
publication which is not targeted at the employee; suitable regard to the valid
sensibilities of the employees ought to allow an arguable defence to any claim
of harassment.
Conclusion
The context is
tragic but the issues are real. With the diverse workforce which employers in
Britain now engage mature consideration must be given to the above issues in
order to seek to minimise the risk of statutory employment claims. The above
example perhaps demonstrates the extent to which matters which formerly would
fall squarely within an employer’s prerogative are now affected by the reach of
statutory employment law.
