Free speech rights at work: resolving the differences between practice and liberal principle

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 paper 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; reconceptualization of the substantive free speech right at stake is required. This paper 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.