Partners in Professional Services and Protected Beliefs – what to do if you get in trouble for contentious speech

Our culture is turbulent and polarised. Social media has been a significant aggravating factor in creating that state of affairs. As we silo ourselves into echo chambers and culture bunkers, we find our tribe, reinforce our own views, and begin to demonise the other side. Moralising and offence are the hallmarks of most social media sites.

The workplace has not been immune from this wider societal phenomenon, nor have partners in LLPs and traditional partnerships. Post made by partners on contentious topics of political, cultural and moral importance can get them into serious trouble with their fellow partners and their regulators. At Doyle Clayton, we act for an increasing number of partners in professional services firms who have found themselves in hot water for things which they have posted on social media. How do we help them? It can be very difficult.

Navigating the challenges of contentious speech

First, it is well known that partners are not employees and do not have the benefit of unfair dismissal protection which employees with over two years’ service enjoy (in the near future, this will be a day one right). Such protection gives rise to the jurisdiction of the employment tribunal and, with that engaged, it is possible to make arguments that the dismissal must not amount to a disproportionate breach of an individual’s right to free expression under Article 10 of the European Convention on Human Rights.

This can be a powerful argument. Matters of public importance or political matters are entitled to particularly high levels of protection. More recent jurisprudence from Strasbourg and from the English Court of Appeal has made it clear that this proportionality hurdle is a high bar for an employer (or a partnership, or a regulator) to overcome. However, without the jurisdiction of the tribunal being engaged, a partner would not be able to make such arguments or bring a freestanding human rights claim against their partnership, as it is very unlikely to be a public authority.

How the Equality Act 2010 can safeguard your protected beliefs

Second, most LLP and partnership agreements have broad expulsion powers and often give significant discretion to the partnership as to the reasons for such expulsion, or even requiring no particular reason to be given (so-called “green socks” clauses). Unless bad faith or improper exercise of discretion can be established, and provided the partnership is generally well advised on following the Deed’s process, a breach of contract claim relating to expulsion is going to be an uphill struggle. It is also going to be an expensive and risky endeavour in the civil courts, with the spectre of adverse cost consequences always present.

I find the most elegant solution is to seek, where possible, to rely upon the protection of the Equality Act 2010, and the concept of protected philosophical beliefs. Several contentious topics of the modern “culture war” have already been found to be protected, in particular gender critical beliefs, Anti-Zionism, and opposition to critical race theory. Many others are also likely to be protected, given the relatively modest thresholds of the relevant legal test for what qualifies as a protected belief. For instance, it is even arguable that “anti woke” beliefs are protected.

What to do when protected beliefs are threatened

If a partner can engage a protected belief, and show that their impugned conduct is a manifestation of such belief, then they can avail themselves of the protection against discrimination and harassment in the Equality Act 2010. Crucially, they can also therefore bring a claim in the employment tribunal, with its favourable and less risky costs-neutral environment and (potentially) lower costs overall. The threat of such a claim can be used as a shield against expulsion or as a sword in settlement negotiations and beyond into litigation.

This protection has the same advantages as Article 10: it is difficult to discharge a Convention proportionality analysis such that it is lawful to expel a partner without discriminating against them. It goes one better though. A partnership would need to show that the manifestation of the protected belief was objectively inappropriate. If they cannot do that, and the expulsion was simply because of an unobjectionable manifestation of the belief, then there is no opportunity to justify the expulsion as proportionate and it will likely amount to direct discrimination.

In short, a well considered belief drafted early in a dispute can have a transformative effect on the progress of an investigation, “disciplinary” process, and a partner’s negotiating position if a settlement is required. It is something that partners, who find themselves in trouble for something they have said on a contentious topic, should strongly consider when mounting their defence.