Zoe Williams has been going into branches of RBS and asking staff to comment on the directors’ bonuses. She can’t understand why they are so reluctant to respond:
All I wanted was the view from the ground in RBS: did the people working in the branches feel besmirched by Fred Goodwin‘s fall from grace, from the removal of his knighthood? How was morale, did customers seem to mind, did their friends and family make salty remarks? Or was it all unperturbed, Goodwin’s ignominy as distant a speck on the horizon as his salary was to the middle of the pay spine?
In a branch of RBS in south London, a teller told me: “We can’t comment, unfortunately.” “Have you been explicitly told not to comment, or are you just constitutionally unable to comment?” “We can’t comment,” she repeated, giving me a look that said “which bit of this don’t you understand?” I just wish she’d said it out loud, then I could have said: none of it. I don’t understand any of it.
Really? Can she possibly be so unaware of the constraints under which most people work?
Companies have always taken a dim view of employees talking to the media. Nowadays, though, when a random ill-judged comment can be repeated thousands of times on Twitter, blogs and YouTube, someone who was unknown yesterday can be famous by tomorrow. An anonymous comment to that nice lady from the Guardian could land you in all sorts of trouble…….
The Guardian, Saturday, 4 February
Bank staff rage against top bosses’ pay
Staff in a central Birmingham branch of Royal Caledonian Bank expressed anger at the pay packages awarded to Chief Executive Simon Jester and his board. Jester, who has introduced a programme of drastic cost cutting and headcount reductions, is in line to receive salary and bonus payments of several million pounds. “We didn’t cause the crisis,” said one supervisor, “but we’ve been on the receiving end of the public anger. My staff have been abused and spat at. And what do we get? Pay freezes and job cuts while Jester and the board earn millions. It’s obscene!”
Telegraph, Sunday, 5 February
Bank bosses furious at criticism of bonuses
Senior executives at the state-owned Royal Caledonian Bank are reported to be outraged at comments made to the Guardian by branch staff in Birmingham, criticising the pay of CEO Simon Jester. RCB insiders said that Jester was ‘incandescent with rage’ after an employee publicly branded his remuneration package as ‘obscene’. An internal investigation has been launched. A source at RCB told us that it would not take long to find the culprit, as the Guardian journalist is well-known and all bank branches have CCTV.
The Independent, Monday, 6 February
RCB employee suspended after attack on bosses’ pay
Royal Caledonian Bank confirmed today that a 35 year-old branch employee from Birmingham has been suspended after an internal investigation.
The Daily Mail, Tuesday, 6 February
Bank whistleblower speaks for Britain’s squeezed middle
We traced Royal Caledonian Bank whistleblower Tanya Thompson to her neat former council house in a northern suburb of Birmingham. Tanya, who greeted us wearing a navy blue suit from last season’s M&S collection and black kitten-heeled court shoes, showed us into the immaculately tidy sitting room of her three-bedroom house. She explained her outrage at fat-cat bosses:
“Bank staff in the branches have borne the brunt of all this. We had no more idea than anyone else that the bank was going to crash. Many of us lost our savings after managers encouraged us to buy shares which are now worthless. Our pensions are ruined and our salaries are frozen. It’s OK for Simon Jester and the rest of them, safe at head office. We are the ones who have to deal with the public anger. They think we all get huge bonuses. I’m on £25k. The more the senior executives pay themselves, the angrier people get and we are the ones who get it in the neck. The pay these people get is disgusting. It’s immoral!”
In many ways, the Thompsons epitomise the squeezed middle. Their house stands out among others on an increasingly run down ex-council estate. After the financial crash, job losses led to repossessions and house prices in the area plummeted. The character of the area began to change. Immigrants moved in and crime rose. Trapped in negative equity, Tanya and her family are caught between cost-cutting fat-cat bosses on one side and the estate’s marauding yobs on the other….
The Sun, Wednesday, 7 February
Torrid Tanya’s sex-drive wore me out, says ex-lover.
Tanya Thompson, the RCB worker who branded fat-cat boss Simon Jester’s bonus immoral, wasn’t always so upstanding, said her ex-boyfriend Keith Jones.
“She was into some really kinky stuff,” said Keith. “Leather, bondage, school uniforms, the lot. I thought she was a bit uptight but when I got to know her I soon found out there was nothing she wouldn’t do. She was always thinking up new sex games and used to drag me into Ann Summers to buy new gear and toys. I’d be exhausted but she’d just keep demanding more and more sex.”
The Mirror, Thursday, 8 February
Secret Nazi past of Torrid Tanya’s ex
The ex-boyfirend of RCB whistleblower Tanya Thompson, who sold his story to the Sun this week, has been outed as a member of the English Defence League. A friend of the couple told Mirror how Keith Jones was an organiser for the EDL who often attended violent street demonstrations and led an attack on a local mosque. Jones is known to the police, has a reputation for violence and in 2009 was convicted of assault. “He totally terrorised Tanya,” said the friend. “He hit her and forced her to take part in his sick Nazi sex fantasies.”
The Star, Friday, 9 February
Exclusive: Details of Keith and Tanya’s sordid sex life
Amazing tales of kinky sex sessions and pictures of their pervy ‘fancy-dress’ parties.
Daily Mail, Saturday, 10 February
RCB whistleblower could be victim of anti-Christian prejudice.
Brave Tanya Thompson who criticised the excessive pay of Royal Caledonian Bank boss Simon Jester may have been victimised at work for being a Christian. Tanya, who found God after ending her relationship with far-right thug, Keith Jones, was often the butt of jokes from jealous staff. One former colleague told the Mail that the snide remarks about Tanya’s faith got worse after she was promoted. Churchgoing Tanya was labelled a ‘God botherer’ and ‘Bible thumper’ by co-workers and, according to one close friend, even her boss made jokes about her religion. A spokesman for Christian Legal Support said that Christophobia is a growing problem in Britain’s workplaces and confirmed that they had contacted Mrs Thompson about taking up her case.
The Observer, Sunday 11 February
Bank employee in hiding after criticising chief exec’s salary
Tanya Thompson, the Royal Caledonian Bank employee who described, CEO Simon Jester’s pay as obscene, was reported to be in hiding last night after details of her private life were published in tabloid newspapers. Both her children were removed from school last week after being taunted by bullies about the allegations made by their mother’s ex-boyfriend. A family friend said that Ms Thompson was distraught after her house was besieged by reporters. RCB confirmed last night that disciplinary proceedings against Ms Thompson were going ahead.
Okaaay, perhaps this is the product of an over-active (and possibly somewhat paranoid) imagination. But people who have never sought publicity often find themselves the subjects of a media storm. Just being in the wrong place at the wrong time, or even just the relative of a murder victim, is enough to have the press crawling all over your private life. Is it any wonder, then, that people are wary about talking to the press?
If you say something to a journalist, the journalist will publish it, even if, as with the RBS staff who spoke to Zoe Williams, it’s just a desperate plea to be left in peace to get on with your job. And, as soon as you stick your head above the parapet, you become fair game. Your employer can sack you and newspapers can start digging up your past.
“I don’t understand any of it,” says Zoe. Well I can understand why the RBS staff don’t want to talk to her. What I don’t understand is why she doesn’t.
Flip Chart Fairy Tales 
Even if RBS staff did say anything, the chances of it being reported accurately, even in the quality press, is just about zero.
Yes, this confirms that the right to free expression is suspended once an employee enters the workplace. Individuals have a human rights to free speech outside the workplace but not within. Is the workplace the final bastion of all that is illiberal?
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I wouldn’t call slagging off your employer to a journalist “free speech”, personally. I’d call it career suicide. What part of that doesn’t Zoe Williams understand?
Expressing an opinion about one’s employee, good or bad, is an example of free speech. The fact that it is career suicide confirms how an employee’s right to speech is suspended once an employment contract has been entered into. No doubt many of the potential whistle blowers were too frightened to alert the public authorities about the corruption that passed for banking for fear they would lose their jobs. The so called whistle-blowing legislation is very weak when it comes to protecting whistle blowers.
It is only dictators and people with something to hide that seek to suppress the fundamental right of individuals to free expression.
“The fact that it is career suicide confirms how an employee’s right to speech is suspended once an employment contract has been entered into.”
Their rights aren’t suspended, you can say what you want but what you say may have consequences. In this case a bank employee expressed her opinion, she wasn’t arrested for it, thrown in prison or tortured, her rights were intact. All she had to do was say no comment and get on with her day, no press intrusion, no investigation, no getting sacked, all actions have consequences and those are the ones from having slagged off her employers to the media.
Same with murder, I suppose. One is free to kill who one likes so long as one is prepared to face the consequences.
I think that may be a bit simplistic. You could say that your rights to free speech are not suspended in North Korea: you can say what you want but there are consequences – fatal ones.
The Convention accepts that the right to freedom of expression is subject to boundaries created by duties. We think different boundaries apply in different contexts. The North Korean dissident has no choice about their context. They are born into oppression and cannot leave. We would want, in those circumstances, the widest possible protection. Entering into an employment relationship is a voluntary act. One is agreeing to advance the employer’s interests in return for income. The restrictions on free expression which damages the reputation of one’s employer is a duty one voluntarily assumes in return for reward. The argument for very wide protections is weaker in such circumstances and that is relected in the European authorities.
Free speech is a red herring here. You have the right to free speech but as Daniel says exercising that right has consequences. An employer also has the right to stop employing someone who is damaging them thought the things they say. Slagging off your employer to the press is likely at the least to undermine your relationship with your employer, just as slagging off your partner is likely to damage your relationship with your partner.
The right of an “employer to stop employing someone who is damaging them through the things they say” is qualified. This right is qualified because if the employee has followed procedure then he or she is entitled to disclose criminal offences committed by the employer or if otherwise there is a significant public interest in disclosure. Under these circumstance the disclosure are legally protected and the employer, at least in theory, is not permitted to dismiss the whistle blower.
The issue of free speech is not always red herring. There are two issues here that seem to have become conflated. One issue is the duty of an employee to advance their employer’s interests. The other is the employee’s right to free expression as contained in human rights legislation. Which one trumps should depend, at least logically, on the facts of the case
if an employee uses their right to free speech to unjustifiably damage an employer’s interests then because they breach an implied term in their employment contract then he or she does not enjoy the protection given by human rights legislation of free expression. A dismissal may well be justified in these circumstances.
if, however, an employee uses their right to free speech to praise an employer, what then? Clearly, the employee has not damaged their employer’s interest so why should he or she not be entitled to exercise their right to free expression? A dismissal under these circumstance may well breach human rights legislation and hence be held to be unlawful at an employment tribunal.
I
Clearly sharing ones thoughts as an employee with the media is not a good idea given how our media love to distort things. But staff reluctance to talk has everything to do with internal fear and nothing to do with risk associated with doing so to the press. These people are scared of ending up like the lovely Tanya (names were changed to protect the innocent!)
Millions are spent every year within organisations, including banks, on “engagement” initiatives and the measurement thereof. And it’s all largely an over complicated waste of money. People don’t just give up the right to “free speech” when they join an organisation, they give up the right to be themselves. This is the key.
But heed this Mr Jester (with a silent H), the world is changing. Who needs free speech and permission to talk when you have social media?
I did a case some time ago called Goode v M&S. An M&S employee had written something strongly critical of his employer and which had been published in the Times. He was sacked. I represented M&S.
One issue was whether UK unfair dismissal law was compatible with the protections for human rights set out in the ECHR. In particular, the issue was whether the right to freedom of expression required that dismissing someone for publicly expressing criticisms of their employer had to be treated as an unfair dismissal. The ET accepted that UK employment protection law was more generous than the European human rights regime.
The right to freedom of expression is not untrammeled. Art 10 (2) provides:
(My emphasis)
There is a body of authority making it clear that the right to freedom of expression was not a blanket entitlement to undermine one’s employer’s reputation even if the opinions expressed were genuinely held. In Guja v Moldova 14277/04, the Court stated:
The Commission is, if anything, even clearer in Rommelfanger v Germany 12242/86 [1989] 62 D&R 151
UK employment law’s protection for whistleblowers is, in my opinion, a stronger protection. If an employee makes a protected disclosure they may not be subjected to a detriment or dismissed regardless of the effect on the employer’s rights or reputation. There is no possibility of arguing that detriment or dismissal was, in the particular circumstances, a legitimate and proportionate interference.
I don’t doubt the correctness of the arguments put forward here. And yes, I would broadly agree that an employee should not talk to the media unless the public interest is served by the disclosure. But suppose an employee wanted to say good things about their employer? Is that a sackable offence even though it may be inferred that the employee has advanced their employer’s interests? If so, then the explanation cited above,
“Entering into an employment relationship is a voluntary act. One is agreeing to advance the employer’s interests in return for income. The restrictions on free expression which damages the reputation of one’s employer is a duty one voluntarily assumes in return for reward”,
does not justify the powers of employers to dismiss employees who speak to outside third parties. Instead, it smacks more of the authoritarian nature of the “master-servant” relationship that underpins UK employment law. Moroever, the power imbalance is now extending further into what employees may think, let alone what they can say. This can be seen from the statements of their employer’s values that are frequently rammed down employees’ throats and to which they are required to uncritically subscribe. I doubt an Employment Tribunal would find for an employee who stated a disbelief in his employee’s values and was dismissed as a consequence. Totalitarian is the name usually given to this set of circumstances.
One final point. Employees may voluntarily enter into employment contracts if they have other sources of income. If they are not so fortunate, then the alternative to an oppressive employment contract is conceivably starvation or extreme poverty. This is becoming increasingly true now that existing on welfare benefits is no longer an option for those without work. The notion of freely contracting parties thus becomes a bit stretched in these circumstances.
No. If it is inferred that that they have advanced their employer’s interests and are sacked the dismissal would likely be unfair.
SInce dismissal would not be justified the point doesn’t arise. An employer couldn’t ordinarily dismiss you for talking to an outside party. It could dismiss you for saying things which damaged its interests (unless it was a protected disclosure) or for dislcosing confidential information. I can just about conceive of circumsatcnes where speaking to say, a witness in a grievance, when you had been specifically told not to would be a sackable offence.
Just as a postscript there was a feature on Newsnight last week on low pay for supermarket workers. Newsnight interviewed an anonymous supermarket employee about the matter. OK, she did not have good things to say about her pay although she did not slag off her employer.
What was worrying was the voiceover which said that this supermarket’s employees were forbidden to talk to the media about work issues. This sounded like a blanket ban. So it does not matter whether disclosures were in praise of the employer or otherwise.
So I reiterate my point that a blanket ban on employees talking to the media breaches an employee’s human right to free expression. The right to free expression is a statutory right given by the Human Rights Act and although qualified can not be contracted out of. Such a term in a contract is over ridden or negated by the statute.
I would hence be interested to know whether a dismissal for talking to the media, even though in praise of an employer, would likely to be upheld as fair by an employee under these circumstances.
The last sentence should read, “… by an employment tribunal under these circumstance”
If such a dismissal were held to be fair, then the ban to free expression will not have been justified on rational grounds such as an employee’s duty to advance their employer’s interest. Instead the ban will be irrational, arbitrary and authoritarian. Of course, most employees won’t see it like this.
For this reason, I believe an appeal to a higher court or tribunal by a dismissed employee would succeed given there has not been a failure to discharge any common law duties (confidentiality or fiduciary) owed to the employer. In short, a contract that imposes a blanket ban on an employee talking to the media is unlawful, in my opinion. Free expression is hence highly relevant to this topic. I await with interest the outcomes of such cases should they be adjudicated on in the future.
Just for the avoidance of doubt, for a breach of confidentiality to have occurred, the matter disclosed must have the quality of confidentiality. Even if an employer says that the matter disclosed is confidential, this does not make it so. The court will wish to assess whether the matter disclosed does indeed have the quality of confidentiality. So talking to the media does not automatically mean the employee has breached the duty of confidentiality owed to their employer.
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Coincidentally, the new Channel 4 drama Secret State also features a state-owned “Royal Caledonian Bank” which is the largest shareholder in a US-based multinational petrol company.