Many employers have policies preventing employees from making public comment on work related matters or at all in a professional capacity. These policies typically provide that any requests for media interviews should be referred to the “PR department” and that employees should not respond personally.
This reflects that employers are generally uncomfortable with individual employees espousing their own personal views on behalf of the company. Or put another way, employers want to control the narrative. And some go to significant lengths to achieve this.
This makes the Siouxsie Wiles case particularly interesting. Associate Professor Wiles was recently successful in suing her employer, University of Auckland, in a case which addressed issues relating to public commentary and academic freedom. The context for the case was the COVID – 19 pandemic during which Wiles was one of a handful of experts who provided regular media comment on the trajectory and impacts of the pandemic and advice to New Zealanders regarding how to stay safe.
In the course of doing so Wiles was subjected to vile abuse, including death threats and threats of rape. She raised these issues with her employer and sought support in putting protections in place to keep her safe. The University took some steps including commissioning a security company to undertake a security review and KPMG to undertake a risk assessment.
However, the University also pushed a lot of the responsibility back on Wiles, essentially taking the view that her role as a media commentator was not related to her work for the University and therefore it was not responsible for her decision to engage publicly in this way. It compared her public role to that of a “celebrity speaker”.
Wiles characterised this as “victim blaming” and as suggesting she was the author of her own misfortune.
The Court found that the University’s approach was “problematic” and that its interpretation of what amounted to a work-related activity was too narrow. It held that the University had failed to do enough to keep Wiles safe in her employment and awarded her compensation of $20 000.
This outcome might seem paradoxical given the starting point of this column. In this regard, employers generally seek to prevent employees from engaging in media commentary on the basis that this is work related and they are entitled to control this. The approach taken by the University could be seen as the reverse, namely that Wiles was acting of her own accord and therefore responsible for her own actions and any resultant adverse consequences.
The explanation for the different approaches is that Universities, and by extension academics, have a statutory responsibility under the Education Act to be the “critic and conscience of society”. The Act says that the right of academic freedom and autonomy means “the freedom of academic staff and students, within the law, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions”.
In the Wiles case the Employment Court acknowledged the important role that experts such as her played in the pandemic in informing public understanding and debate. As an academic specialising in this area, her expert commentary was found to fall within the scope of her role and responsibility and was therefore an extension of her work, despite not being asked to engage in this way by her employer.
Whilst this scenario is particular to academia, it is not unique. There are examples in other sectors where employees have a professional responsibility to call out issues of public interest, including notably in health, education and finance.
Given the current focus on freedom of expression and the right of individuals to express personal views in a public setting, the Wiles case highlights the need for careful thought to be given to this issue. A blanket ban or “gagging” order on employees may not be appropriate in many instances. Conversely, an employer washing its hands of the consequences for an employee of speaking out may not be either.
We need experts like Wiles to educate and inform public debate and we collectively benefit from this. At the same we need to safeguard the right of employers to safeguard their business and their brand, whilst not strangling individual expression and the free flow of ideas.
This article was originally published in The Post
