The Israeli-Palestinian conflict has long been a divisive issue that has stirred up strong emotions and feelings. Recent events have, however, provoked fierce responses around the world, with demonstrations in many major cities and furious debate on social media. In the wake of the largest attack on Israel and kidnapping of hostages by Hamas on 7 October, Israel’s ongoing airstrikes and ground invasion of Gaza, which has killed over 8,000 people, and its decision to cut off power, as well as severely limit water and food supplies, threatens a larger humanitarian calamity.
It can be challenging for any employer to know how to respond to tense discourse about the Middle East in the workplace and for employees to understand the boundaries when it comes to voicing their personal opinions. This has prompted questions about where lines are drawn between employees being ambassadors for their company and having their own identity.
Background of the Suspension
One pertinent example is the case of the tube driver who appeared to lead a chant of ‘free, free Palestine’ over the train’s speaker system on a central London train, as about 100,000 protestors took part in a pro-Palestine protest and demanded an end to Israel’s bombardment of Gaza.
The voice from the Tannoy cried “Free, free,” to which several passengers responded with ‘Palestine’. The chant is often heard at demonstrations in solidarity with Palestinians. He continued to ask passengers to keep those people (referencing the Palestinian lives lost and impacted by the war) in their prayers and informed passengers that he intended to march in tribute to Palestine but had to work that day.
After footage of the incident circulated on social media, the driver was suspended, pending an investigation by Transport for London (TfL) as to whether the driver should face disciplinary action. The driver was also questioned by the police.
Reactions to the Suspension
The news that the tube driver had been suspended for inappropriate use of the tannoy and could be disciplined sparked mixed reactions. Supporting disciplinary action, Britain’s security minister, Tom Tugendhat, wrote on X (formerly Twitter) that many from the Jewish community would have found the video intimidating and the Israeli Embassy in London criticised the chant on the basis that public transport should be a place of ‘safety and inclusivity for all’.
However, the suspension also prompted an online backlash, with many saying the driver should have the freedom of expression and the right to express solidarity with humanitarian causes. Dianne Abbott, the MP for Hackney North and Stoke Newington defended him on X by saying that the tube driver would not have been suspended if he was backing Ukraine. Furthermore, a petition supporting the driver and calling on the TfL to reconsider disciplinary action gathered over 100,000 signatures.
So what is the actual legal position? Can the tube driver be dismissed on account of expressing his personal political views at work?
The Legal Position
Well, the legal position is not clear-cut and will depend on the specific facts of the case.
What Does The Law Say?
Article 10 of the Human Rights Act 1998 does provide everyone with the right to freedom of expression. This right, however, is also subject to other prescribed laws that restrict certain conduct at work. Put simply, while there is a right to express your political opinion in the UK, there are certain circumstances under which you may not be able to do so.
A dismissal because of a personal political opinion is not a ground for dismissal; in such circumstances, the dismissal would usually need to relate to an employee’s conduct, capability or some other substantial reason. The first step would be to look at the employer’s work policies and codes of conduct. For example, TfL may have a policy that covers the misuse of the Tannoy for purposes other than work. However, seeing that it is not uncommon to hear a tube driver commenting on the weather or even commiserating with or congratulating football supporters after a football match, it is clear that even if tube drivers are not supposed to be making personal comments on the intercom, this is probably not being enforced widely.
What if TfL has a Bullying and Harassment Policy?
It is more likely that TfL will be relying on a wider Bullying and Harassment Policy or a Code of Conduct for employees when investigating whether the driver was guilty of misconduct. It appeared that the tube driver was expressing his views in a non-violent manner and did not call for the destruction of Israel, so it seems unlikely that TfL could argue that he was inciting hatred.
However, it is possible that TfL could find that his views expressed through a Tannoy amounted to harassment if it created an unwanted, intimidating, and hostile environment for some passengers on the train and made them feel unsafe at a time when political tensions were high. If the behaviour is unwanted and causes offence, it may potentially be harassment even if it wasn’t intended to offend. TfL could also argue that the tube driver’s use of the Tannoy to put forward his personal beliefs brought TfL’s reputation, which is committed to ‘providing a safe network for everyone,’ into disrepute and resulted in many complaints.
It will depend on the wording of TfL’s policies but harassment can constitute misconduct and merit disciplinary action, including dismissal.
Nevertheless, any claims made against the tube driver would need to first be thoroughly investigated to establish whether it was, in fact, reasonable for the driver’s conduct to have offended in the particular circumstances or whether those complaining were being overly sensitive given that the tube driver’s primarily concern appeared to be the humanitarian plight of the Palestinian people.
TfL, as the employer, would also need to act fairly before embarking on any disciplinary action by holding a disciplinary meeting with the tube driver to ensure they have heard his side of the story and considered any mitigating circumstances. Even if it can be proven that the tube driver’s conduct did result in creating an intimidating or hostile environment for some people on the train, TfL would then have to consider whether it was reasonable for them to dismiss him, or whether a lesser sanction, such a written warning, was more appropriate.
Challenges to a Dismissal
If the TfL did choose to go down the route of dismissal, the tube driver has a right to appeal against his employer’s decision. If that is unsuccessful, he could also challenge the dismissal by bringing an unfair dismissal claim in an employment tribunal. Furthermore, the Enterprise and Regulatory Reform Act 2013 enables unfair dismissal claims, where the sole or principal reason for the employee’s dismissal is because of their political beliefs and opinions, to be submitted without having two years of continuous service.
In such circumstances, a tribunal would ask whether TfL had acted within a band of reasonable responses in treating the misconduct as a sufficient reason to dismiss, which will naturally depend on the circumstances. Things that a tribunal may take into account include whether or not the employer made clear the standards of conduct expected of employees in respect of the matter for which he is being disciplined. A tribunal may also take into account whether TfL applies this standard of conduct consistently and fairly across the board. In this respect, it may be relevant to consider whether a tube driver showing support for Ukraine at the risk of creating an intimidating environment for Russian passengers, would have been treated differently.
Our Thoughts
One interesting question might also be the extent to which the anti-discrimination legislation, which outlaws discrimination on the grounds of a protected philosophical belief, might offer protection to anti-Zionist (or indeed Zionist) opinions.
While it has not been yet confirmed by a tribunal, an anti-Zionist stance could potentially be capable of being a philosophical belief that falls under the protection of the equality legislation. Case Law requires a protected belief to be genuinely held, widely shared in society and worthy of respect in a democratic society; many would argue that a belief in anti-Zionism meets these criteria. Furthermore, the courts have generally applied a broad interpretation of ‘belief’ as a protected characteristic and every year the range of philosophical opinions (including a belief in man-made climate change and a belief in participatory democracy) that fall within the law widens.
If anti-Zionism was to be accepted as a philosophical belief protected under the Equality Act 2010, the tube driver could bring a claim under this legislation if he was able to demonstrate that he held anti-Zionist beliefs, which resulted in him being critical of the Israeli government’s policies concerning the Palestinian people. Such a claim would be based on the premise that disciplinary action taken against him amounted to discrimination and /or victimisation related to his philosophical beliefs.
A tribunal considering the fairness of the tube driver being disciplined for expressing anti-Zionist opinions over the Tannoy would then have to consider whether TfL took a specific and distinctively harsh disciplinary action against the driver because he spoke up in support of Palestine while allowing support for other causes over the intercom to go unpunished, or whether the employer sanctioned this particular behaviour for a legitimate reason.
The information provided in this article does not and is not intended to constitute legal advice or give rise to a solicitor-client relationship. Specialist legal advice should be taken in relation to specific circumstances. For an open and honest discussion about your case, contact our employment lawyers today. For more legal news, follow our blog.
