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Snapshot

  • Tensions have been emerging about the rights of employers to limit how their employees express their personal views.
  • Despite recent attention, the law surrounding discipline of an employee by their employer for the publication of controversial opinions has not changed.
  • There is no general immunity for free speech in an employment relationship.

Over recent years, the framework of employment laws has been challenged by changes in the way work has been performed. The emergence of the ‘gig’ economy, in particular, has marginalised the traditional employment paradigm. There has been intense debate and inquiry about the adequacy of the existing employment laws to meet the emergence of non-traditional work relationships. Within the employment framework however, the fundamental pillars of employment remain in place. Archaic language to describe the employment relationship, such as ‘Master and Servant’ and a contract of service, is a reminder that an employee must comply with an employer’s reasonable and lawful instructions. The employment relationship is a personal one that either party can end.

This month we have seen the spotlight squarely placed on the issue of freedom of speech in employment. The Israel Folau controversy has sparked a debate about whether he should be allowed to reproduce views or express his own, contrary to the views supported by his employer. It has led to discussions about the adequacy of legal protections for freedom of speech, and religious freedom.

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