With heightened global tensions creating increasingly polarized political discourse, conversations around free speech are once again finding their way into the workplace. But how far does this right extend within a professional setting – and what limitations apply?
A common misconception: The Charter and the workplace
Many people believe that the Charter of Rights and Freedoms (the “Charter”) protects their freedom of expression in the workplace. In reality, the Charter allows individuals to express their views through free speech without fear of reprisal from the state, but this typically applies to public forums or access to public services. The Charter focuses on the relationship between the society and its government and individual citizens – not the private employment relationship.
Balancing rights and responsibilities
The workplace, in contrast, presents a unique environment where freedom of expression intersects with an employer’s management rights. An employer’s job is to balance employee rights with operational needs and promoting a productive and inclusive workplace. This is particularly true given an employer’s obligation to ensure that it cultivates a safe working environment for its employees. This balance reflects the nature of the employment relationship itself: two private parties entering into a contract together. As a part of that contract, employers can regulate an employee’s rights to free speech to protect its own values and legal obligations.
What the law protects
Political belief is a protected characteristic under the Human Rights Code (the “Code”), but it is interpreted narrowly. In the employment context, the right to a political belief only extends to protect an employee from adverse impacts, such as being fired solely because of political affiliation. It does not mean employees have a free pass to engage in political speech that violates company policies or public health orders. These political beliefs can extend to cover beliefs about the organization, function, and mode of society, and inherently recognizes that political speech plays a role in public discourse. The belief, however, must be core to the person’s concept of social cooperation.
Religious belief is also a protected characteristic under the Code and includes not only adherence to the practice of a particular faith, but also a sincerely held personal belief. This standard helps to ensure individuals are not using religious belief to simply obtain more favourable working conditions. Employers have a duty to accommodate religious beliefs, but only to the point of undue hardship. For example, if an accommodation would pose a serious safety concern in the workplace, an employer may not be required to provide it.
Limited speech in the workplace
An employer can implement rules to limit free speech to protect its own reputation and brand image. There are several scenarios where an employee may reasonably limit expression:
- Reputation management: Employees owe a duty of loyalty to their employer which requires acting in a manner consistent with the employer’s interests. An employee is a representative of their employer (even when they are not publicly representing the employer on social media or in public). This means an employer can implement policies to safeguard their brand, including rules around defamation, discrimination, and confidentiality.
- Compliance with policies: Employers can also limit free speech in the workplace to ensure compliance with company policies. This includes rules around proper social media use and proper workplace discourse. Repeated breaches could result in progressive discipline, including warnings and even just cause termination.
Key takeaways
Freedom of expression is not absolute in the workplace. Employees do have the right to speak freely in the workplace, however that right must align with the law, employer policies, and broader workplace obligations. Speech that violates public health orders, spreads private or confidential company information, or creates a discriminatory or unsafe environment may justify employer action.
Navigating these issues isn’t always easy – for employers or employees. For more information about free speech in the workplace, contact our team – we’re here to help!
