As readers will likely be aware, a flurry of ‘hate speech’ laws have recently been passed, or are in the process of being passed, around the English-speaking world – most notably in Ireland, Scotland and Canada. It has rightly been pointed out that this represents a dangerous escalation in the extent to which freedom of expression is being squeezed in the purportedly ‘free’ West.
But what is less frequently pointed out is that ordinary people are already subject to an extremely pervasive and intrusive form of speech regulation which – indefensibly – has been introduced largely through using private or civil law claims to achieve regulatory ends. This has happened in a manner which is frequently totally opaque to those who are subject to the rules, and which gives judges (generally sitting in tribunals) unforgivably wide discretion in determining whether something permissible, or impermissible, has been said. The ultimate effect is a kind of quasi-criminalisation of certain forms of speech through the civil law, which forces ordinary people to be very watchful over what they say, lest they be made subject to the discipline of the state apparatus imposed via tribunal judgments awarding meaty awards of damages (i.e., compensation) to ‘victims’.
This has important philosophical implications, which I will come to in due course. But first let me illustrate with an entirely ordinary – these sorts of cases are decided by the bucketload – illustration of this phenomenon, with the case of Miss N Nolan v C Fairfield and J Fairfield T/a Appletree Guest House, a U.K. Employment Tribunal decision from March 2024.
“Do I need to give you an instruction manual?”
Miss Nolan (N) was an employee of the Fairfields – owners of a hotel or guesthouse in the Lake District of England. N did the cleaning, served breakfast and performed other ad hoc duties. She started working at the hotel in 2019, and was apparently comfortable there until March 2022, when she suddenly fell out with the Fairfields. She had previously been very friendly with Catherine Fairfield (C), but on March 16th, it is alleged, she found herself working alone with Jason Fairfield (J), the husband of C. And, on this day, it seems, something happened:
We [i.e., the Tribunal] find that the claimant [N] said something to [J], suggesting that he should have made or stripped the bed that he and C had slept in the previous night, and he replied by making a comment that it was a woman’s job.
This seems to have been followed by an incident later that day in which N, having had trouble with cleaning some newly-installed toilet seats, mentioned this several times to J. Here, the tribunal found that J had responded with something to the effect of, “Do I need to give you an instruction manual on how to clean a toilet seat?” And this, the tribunal heard, was in N’s opinion said in an “insulting and aggressive manner”, and was “patronising”.
N and C then had a heated conversation on the next day, March 17th. This mostly seems to have been about pay – C had suggested that she could only afford to raise N’s pay to a certain figure (£10.66 an hour), and as a result N said she would begin looking for alternative employment. But at this meeting, according at least to N’s account (which C flatly denied), she also raised concerns about J’s comments, which C failed to adequately address.
The result of this conversation was that, in the tribunal’s own words, “there was an atmosphere [sic]” between N and C. On March 24th, N suddenly went off sick and went incommunicado. She returned on April 4th to have a conversation with C, billed as an attempt to “try and restore a good working relationship at a place where she had happily worked for about four years”, but this quickly descended into an argument. The tribunal found that N had asked for an apology from C for J’s conduct, but that this had not been forthcoming (again, C denied that any such request was made); the tribunal also found that the matter of money had again arisen.
After the argument N left and did not return. C then sent her a couple of text messages, the last of which stating that as N had walked out and apparently did not intend to return, C would deem her contract of employment to have come to an end. It soon emerged that N had found another job elsewhere and she started in that employment on April 5th and 6th. And that was that.
“Creating an intimidating, hostile, degrading, humiliating or offensive environment”
This is not, as you will probably agree, on its face high stakes stuff. Indeed, it is almost absurdly workaday. And since N had, apparently none the worse for wear, walked into another job almost immediately (something which, it seems safe to guess, she had pre-arranged before the showdown of April 4th), it is difficult to imagine how it could be chalked up as anything other than ‘one of those things’. How, then, did it come to be litigated at all?
One reason was a dispute about N’s pension, which I will come back to later. But the interesting reason for our purposes was (you may have anticipated some of this already) that N decided herself to have been subject to what is called ‘constructive unfair dismissal’, harassment related to sex and direct discrimination on the grounds of sex. And she therefore brought these claims – along with the pension dispute – to the Employment Tribunal.
The essence of the argument here is easily stated. Constructive unfair dismissal is what is meant by a situation in which an employee justifiably terminates an employment contract without notice “by reason of the employer’s conduct” (under the Employment Rights Act 1996). This typically happens in a situation in which the employer’s conduct has destroyed or seriously damaged the relationship of “mutual trust and confidence” between employer and employee. This, N argued, had indeed happened when C had failed to apologise for J’s comments or respond appropriately to concerns about them.
Harassment, meanwhile, under the Equality Act 2010, is described as “unwanted conduct related to a relevant protected characteristic” (e.g. sex, race, age, etc.) which has the purpose or effect of “violating dignity” or “creating an intimidating, hostile, degrading, humiliating or offensive environment” for the claimant. J’s comments, according to N, fit the bill for this. And direct discrimination on the grounds of sex is, of course, what is meant by an employer treating a person less favourably because of their sex; the point made there is I suppose clear enough.
The effect of these claims was to require the tribunal to conduct a thorough, wide-ranging and forensic dissection of all relevant conduct to see if it could find instances: a) in which ‘mutual trust and confidence’ between employer and employee had been destroyed or seriously damaged by C or J; b) in which N had been harassed; and c) in which N had been directly discriminated against. And the result was an almost self-parodically petty litany of speculative assessments delivered on a kind of laundry-list of separate complaints, each in itself designed to build the case either that the relationship of mutual trust and confidence was destroyed or seriously damaged, or that harassment or direct discrimination had taken place. For example:
- Did C ignore N on March 21st-23rd 2022? “We were not satisfied, as a matter of fact, that [C] ignored the claimant in this period, although we found that there was an atmosphere [sic] between the claimant and [C].”
- On March 24th 2022, was N left alone with J? “We found… that [N] was left on her own in the house with J… though working on different parts of the house. We found that this was because J was doing a job of [sic] installing a TV while [his daughter took C to hospital for cancer treatment]. We conclude that there was reasonable and proper cause for this treatment…”
- Between March 17th and 24th 2022, was there any evidence of the relationship of trust and confidence having been destroyed? Well, C “was not as chatty as before” and, or so was later alleged by N, was “nit-picking”. But N “has not satisfied [the Tribunal] that [C] ignored her”.
- On April 4th, did C refuse to have a meeting with N, on the basis that she was busy and needed to walk the dog? “We found that [C] did refuse to have a talk at that time but found this was because it was a busy time of day…”
- On April 4th, did C shout at N? “We found that both [N] and [C] engaged in a heated discussion [and therefore] conclude that [C] raising her voice to [N] is not capable of contributing” to a breach of the duty to uphold mutual trust and confidence on C’s part.
- On April 4th, did Grace, C and J’s daughter, shout at [N] and accuse her of asking [J] too many times about the toilet seat? “We did not consider it necessary to make a finding of fact about this [but] if we had been required to make a finding, we would not have been satisfied that it occurred as alleged.”
- Were J’s comments of March 17th, about the toilet seat, harassment? “It may be that the claimant felt that Mr. Fairfield by his comments was patronising her and that he would not have spoken to a man in the same way [but] we have no evidence from which we could make an inference that the making of these comments was related to sex…”
- Did J, as N alleged, ask her on March 17th, “Do you not know how to do a woman’s job of cleaning a toilet seat?” No – “we consider it unlikely that Mr Fairfield would have used these precise words, partly because of the complicated construction of such a sentence”.
- Did C “laugh in amusement” during the conversation of April 4th at the prospect of asking J to apologise to N? “We consider it unlikely that [C] laughed in amusement, but we consider that she may have laughed in a nervous way.”
- And so on.
It bears emphasising that the tribunal had essentially no evidence on which to base any of its assessments regarding the underlying facts, beyond the ‘he said/she said’ of conflicting statements between the two sets of parties. C and J denied that almost any of the alleged incidents had taken place at all. N claimed she had made contemporaneous handwritten notes which her boyfriend had later typed up, but then had inexplicably destroyed the originals – a story which the tribunal rather uncritically accepted. But in any event, the end result of this soap opera-style forensic exercise was that in the tribunal’s view there were almost no grounds for finding that the Fairfields had breached the duty of mutual trust and confidence with N, nor that N had been harassed. It also found that the direct discrimination claims N made were not well-founded. But it nonetheless found against the Fairfields on two bases:
- When N had raised her complaint against J to C on March 17th and later on April 4th, C had failed “to indicate in any way that she would consider and, if appropriate, take action in relation to the issues raised”. Since N would encounter J on a regular basis and he had “been insulting and patronising” to her, the failure by C to take any action to address J’s behaviour would make N’s situation intolerable. Hence, the duty of mutual trust and confidence had been breached and “[N] was entitled to treat the contract as being at an end”. She had been constructively unfairly dismissed.
- When J had said to N that stripping the bedsheets was a “woman’s job” he had been making an “offensive… sexist comment” and this had been “done with the purpose of violating [N’s] dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment” for her. He had therefore harassed her within the meaning of the Equality Act 2010.
The claims of constructive unfair dismissal and harassment on the grounds of sex therefore succeeded, and N will receive compensation accordingly – a remedies hearing will be heard in early May.
“It is difficult to see what other purpose the comment could have”
There are a number of things to be said about all of this.
First, one is in grave danger, as a middle-aged man, of being subject to all manner of opprobrium when one is percieved to be closing ranks with another middle-aged man accused of having said something sexist. And my intention here is, I am anxious to make clear, not to defend what Jason Fairfield said if he indeed commented that changing bed sheets is “a woman’s job”. Without doubt, if he did indeed say it and if it had upset N, he ought to have apologised – on that any reasonable person can agree.
But I do wish nonetheless to make the case that human interactions are always embedded in a particular context, are nuanced, and are not amenable to being taken in isolation. Let us, then, refresh our memories. According to the Tribunal, as you will recall:
[T]he claimant [N] said something to [J], suggesting that he should have made or stripped the bed that he and C had slept in the previous night, and he replied by making a comment that it was a woman’s job.
It was not, then – even if we accept that this is an accurate description of what was said – that J was simply swanning around making abusive comments as he saw fit. He was responding to something that had been said to him. And while of course one could imagine that his remark was made in a hostile, bullying way (an older man throwing his weight about and seeking to belittle a younger woman), one could also (to my eye) equally well imagine that J was simply replying with an ill-advised but fairly anodyne tongue-in-cheek comeback after having been chided by N for not changing his own bedclothes. In short, one could certainly read the interchange as bullying, but one could equally well read it as the kind of bickering banter that a pair of colleagues will often enter into after they have been working together for some time. One could even read it as gently affectionate in a cackhanded sort of a way; while it is of course taboo to notice this in 2024, there are important behavioural differences between men and women, one of which being that men will often say things which are on their face insulting as a way to signal friendship.
This alternative reading was indeed suggested by the tribunal itself; it was clearly alive to the possibility that J was just making a bad joke. As the tribunal itself put it: “It is possible that this was not a sincerely held view which he expressed but something said to deliberately wind the claimant [N] up.” And this explanation seems more likely when one considers that the tribunal was not able to find any other evidence of a sexist remark ever having been made, or position having been adopted, by J, at any time. (And it probably bears re-emphasising that he strenuously denied having made the comment at all, and sought to stress that since he had three daughters of his own, at least one of whom worked in the guesthouse, he would not have said any such thing.)
The idea, then, that this one line – even if it had been uttered, for which there was no evidence except N’s word – should in itself have been dispositive in determining that there had been harassment in the sense of “violating [N’s} dignity” or “creating an intimidating, hostile, degrading, humiliating or offensive environment” seems rather extreme. J could (if he made the remark) probably be fairly accused at worst of having been oafish. But is oafishness something with which the law should concern itself? The answer, at least in the tribunal’s view, was yes: “It is difficult to see what other purpose the comment could have [other than it having been] made with the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for [N].”
The second thing to elaborate is what I earlier called the ‘quasi-criminalisation’ of certain forms of speech through the civil law.
The civil law (also known as private law) comprises those bodies of rules (contract, tort, trusts, etc.) which regulate relationships between individuals. You and I have a contract and you breach it; you have to compensate me and I can sue you if you fail to do so. You injure me through a negligent act; you have to compensate me and I can sue you if you fail to do so. And so on.
The employment contract, being a contract, is a creature of private law, and is therefore aptly regulated on those terms. This can be easily demonstrated by N’s other main successful claim, to which I have already alluded – regarding her pension. When N had started in her employment with the Fairfields, C had failed to enrol her in a workplace pension scheme, and actually did not do so until May 2021 (after having been asked to do so in September 2019). But the contract between them had clearly stated that the latter would enrol the former in a pension scheme if she was eligible (which she was). The contract had unquestionably therefore been breached by C. And the tribunal duly found in favour of N in respect of her claim in this regard; the remedy for it will almost certainly be damages to the tune of backdated pension contributions.
No sane person could object to this: this is what the law of contract is supposed to do. C and N created an agreement which they intended to be legally binding; if one of them violates it, she therefore has an enforceable duty to compensate the other.
But starting in the 1970s, and accelerating in recent decades, the law of contract has been increasingly used as a means by which to regulate conduct indirectly. This is a long story, and too involved to get into here, but in the field of employment law it arose through the notion that employment contracts contain a particular implied term (meaning one which is in the contract by default) – the aforementioned duty to act in “mutual trust and confidence” which, if breached, essentially permits the employee to walk out of a job without giving notice and claim damages for lost wages.
This idea, originally a product of the courts but later codified in statute, was explicitly designed to ‘even up’ the balance between employers and employees. Rather than letting employers call the shots, employees were granted something of a whip-hand: an employee becomes annoyed or dissatisfied with his or her employer, or finds a better job elsewhere, and walks out without notice. The employer wants to withhold unpaid wages, of course, but cannot do so if the employee has a convincing claim that the employer breached the obligation to act in “mutual trust and confidence” and that the employee was therefore constructively unfairly dismissed. And the employee can indeed thereby him- or herself receive compensation for future wages lost as a result of being ‘forced’ to quit by the employer’s conduct.
This has the logical result of opening up the employer-employee relationship to precisely the kind of pervasive, pettifogging, raking-over of trivialities which is so evidently on display in the judgment in Nolan v Fairfield, in order to find out whether “mutual trust and confidence” has been seriously damaged or destroyed. And the introduction of equality legislation naturally put these developments on steroids, because it layered on top of the existing dynamic an additional route by which an employee can in these kinds of circumstances receive yet more compensation. All of a sudden, the employee is no longer merely insulated from the consequences of resigning without notice by being able to claim constructive unfair dismissal, and compensatable for future lost wages; he or she can also receive an additional payout as compensation for having been harassed, and so on. Clearly, there are instances of genuine harassment, and one would not wish to deny the importance of this. But the temptations to an employee in such circumstances are equally as clear.
It seems apt to describe all of this as a kind of hybridisation of private law (which is supposed to resolve disputes between individuals) with public law (which is supposed to regulate the relationship between individual and state). The disputes in question are between employers and employees, the quintessential private law relationship. But the law has almost been designed to allow such cases to function as a window through which the state can insert itself, and its own perspective on what is permissible to say, into the private sphere – and to police speech accordingly. It does not do this through direct criminalisation, but through the all-pervasive threat of being sued and having to pay compensation to the ‘victim’ as a kind of quasi-fine for having misspoken.
In anti-money laundering circles, the state’s use of the civil law to seize or freeze (often entirely innocent) people’s assets under the rubric of ‘civil recovery’ (a subject I intend to write more about shortly) has been labelled, mischievously, ‘civil-for-criminal procedure’. This is because it consists of the use of a private or civil law remedy to, essentially, de facto criminalise otherwise innocent conduct. The way in which ill-advised, foolish or ‘offensive’ comments are being likewise punished through the vehicle of employment law has the same kind of a ring to it – and it seems apt on that basis to refer to the phenomenon in a similar way, as ‘civil-for-criminal’ speech suppression, which has the effect of making ordinary people very afraid that even the slightest, most innocuous remark might end in severe consequences if interpreted in the wrong way.
That it is done not through the application of clear rules but through giving tribunals very wide discretion in determining whether “mutual trust and confidence” has been “seriously damaged”, whether an “intimidating, hostile, degrading, humiliating or offensive environment” has been created, and so on, is all the more galling – because it makes it almost impossible for ordinary people to predict in advance the way in which the law will operate. This has a deep and powerful chilling effect, because it produces in people an overabundance of caution with respect to what one can, and cannot, say – one simply does not know in advance what the result of the most innocent slip of the tongue will be. This is not to say, of course, that there are absolutely no circumstances in which an employer might create an “intimidating, hostile, degrading, humiliating or offensive environment” through a pattern of bullying or harassment – because, of course, there are. It is rather to observe that we have by increments crept slowly but surely away from remedying that type of conduct, and towards the realm of overkill – wherein potentially ruinous financial penalties are imposed for merely having said something a bit silly in the heat of the moment.
Life in the universal and homogeneous state
What explains all this? How is it that somebody can, through having been found to have made a single ill-advised comment (that, to repeat, he may not have made at all, and which may very well have been intended warmly), find himself and his wife being punished in this way? What drives this relentless expansion of employment law’s civil-for-criminal potential?
In previous posts (for example, here), I have suggested that it is a feature of modernity that it points towards what Kojève called the “universal and homogeneous” state – a position in which distinctions between any and all individuals are rendered irrelevant except in cosmetic terms. I suggested that this is because, since modernity ultimately subjects any form of pre-political loyalty (to nation, religion, tribe, family, etc.) to rationalist critique and finds it wanting, it only recognises a justification for government in the fact that it ‘governs’ – intervening into every facet of society in order to make it ‘better’. This means that it must ‘liberate’ the individual self from any social bond or tie that might form a barrier to government’s own projects of improvement. The result of this, of course, is atomisation, and since atomised individuals by definition cannot accept hierarchy or authority, they are transformed into the equivalent of siblings. And because they are siblings, they do what siblings always do – squabble eternally to be the most equal.
I further suggested that the effect of this is that the state comes to occupy a position of ‘kritarch’, omnipresent in all social interactions as an implicit promise (or threat) to intervene so as to ensure that the perfect equilibrium of equality is never disrupted:
The end result is that no human interaction is really carried out on a one-to-one basis, because even in their most intimate relations the individuals concerned are aware that the awesome power of the kritarch state is there, hovering over them, ready if necessary to step in.
The case of Nolan v Fairfield is a wonderful and mildly terrifying example of this. It is wonderful in that it perfectly illustrates just how extensive and effective the state-as-kritarch model has become. And it is mildly terrifying in that it shows how far we have descended into the bowels of the sibling society – so far indeed that one wonders if we will ever ascend again. Modern liberalism has rendered us all brothers and sisters, as I have previously observed, and like all brothers and sisters, we are “eternally looking to parental authority to step in to resolve conflict on [our] behalf” – and always, needless to say, in our favour. When something goes wrong, we do not seek to resolve the matter informally between ourselves, but appeal instead to the state to resolve it for us. And, crucially of course, we do this not in order to achieve a ‘just’ outcome in the objective sense, but to achieve the outcome which will elevate us at the expense of our siblings.
This mode of interrelating has now become truly pervasive. And it is one our truly intractable problems. There is no reasonable person who disagrees with the proposition that direct discrimination is bad and that formal equality – in the sense that the law must not make distinctions in how it is applied on the basis of sex, race, etc. – is good. And nor is there a reasonable person who thinks that employers should be able to create an “intimidating, hostile, degrading, humiliating or offensive environment” for their employees and get away with it. But, as moderns, we seem to have a devil of a time preventing those sensible propositions from taking flight into dark places. I don’t believe that many of us particularly want to live in a world in which an employer can face potentially severe financial consequences merely for failing, perhaps in a misguidedly jokey way, to express himself in an impeccably politically correct fashion to an employee – especially when the ‘victim’ suffered no loss and indeed walked into a better job within two days of resigning. And yet that is the position to which, inexorably, we have been drawn. How to square this circle is, it is increasingly apparent, one of the most serious challenges of our time, and it is not readily apparent how, as moderns, we can rise to it.
Dr. David McGrogan is an Associate Professor of Law at Northumbria Law School. You can subscribe to his Substack – News From Uncibal – here.
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