
Generally, employees are entitled to express opinions, even if they are critical of the charity
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Can arts charity workers have a voice?
Due to new Charity Commission guidance and increased demands from funders, charity trustees are facing new challenges, says Cause4’s Michelle Wright.
In a year of political change at home and abroad, of continuing post-pandemic impact and with a myriad of issues that civil society is grappling with in relation to social injustice, it is inevitable that charity staff will have strong opinions on policy and delivery and will want to voice those opinions.
It’s also a reasonable expectation that they might anticipate the organisation they work for would consider and, where possible, act on their views – or at least the majority views of the team. But, due to Charity Commission guidance and the additional requirements of some funders, this area is increasingly a headache for trustees of arts charities.
Limitations to freedom of expression
Charity staff, like all employees in the UK, have the right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR), which is incorporated into UK law through the Human Rights Act 1998. As such, they are generally entitled to express opinions, even if those opinions are critical of the charity or its work – unless it interferes with their duties or violates other legal obligations.
However, there are limitations to this if expressed opinions could be said to harm the charity’s reputation, breach confidentiality, incite hatred or discrimination or impede workplace policies and contracts.
As ever, there is a balance to strike. Some charities have been criticised for overt political advocacy or commentary on government policy or activities – such as this example from the RSPB. This is particularly true where there may be reputational risk or a risk to the Charity Commission’s stated goal of maintaining public trust in charities.
And, of course, reputational risk extends to areas beyond government policy such as international conflict or environmental campaigning.
How to strike the balance?
For arts organisations, artistic work itself can be political, and freedom of expression is an important right to protect. If organisations over-define their risks or self-censor, this can create multiple problems. One of the fundamental joys of artistic work is its ability to spark debate and increase the free and open exchange of ideas.
So how do trustees strike the balance between encouraging and protecting freedom of speech and the democratic process, without falling foul of regulator guidance? And how do we provide a safe infrastructure within organisations to give people space to have a voice, while ensuring individual views don’t subvert the organisation’s values and clarity of purpose?
There are several principles for arts leaders to hold onto:
- Firstly, trustees need to make decisions in the best interests of the organisation. This means considering the views of individuals, but maintaining the organisational view – as encapsulated in its founding document – its public benefit activities and future sustainability as the overriding concern for trustees.
- The law requires charities to be independent of party politics i.e. they can’t support or fund parties or candidates, although campaigning (achieving their goals through influencing particular audiences) is legitimate. Charities can support and oppose the policies of political parties but must consider how it could affect public perceptions of the charity’s independence and any reputational risks.
- Equally, charity trustees need to consider conflicts of interest when employees stand for election or are personally involved with a particular party, in terms of both organisational reputation and legal liability of the individual taking on both roles simultaneously.
- Social media guidance is essential. The Charity Commission’s framework seeks to support trustees in applying their legal duties in this complex area – for example, when an individual connected to a charity posts comments or opinions on their own social media account that the charity considers inappropriate. However, it is debatable whether a charity has the power to restrict what any individual shares on their own accounts. The other difficulty is the speed with which opinions spread across social media, making it very difficult for trustees to respond quickly enough, keep track of events or take action to manage any risks.
- If an employee speaks out about unethical or illegal practices in the charity, they may be protected under whistleblowing legislation (under the Public Interest Disclosure Act 1998). Employees who raise concerns in the public interest, such as about fraud, safety violations or other serious misconduct, are generally protected.
Steering organisations through complex issues
While this is all standard practice, it doesn’t help leaders and trustees to manage strong opinions of staff. Similarly, embedding processes for coming to a collective organisational view are far from straightforward.
Many trustees, as part of the Arts Council’s Transforming Governance work, cite hours spent steering their organisations through these complex issues. In practical terms, how do we strike a balance between protecting the charity’s reputation and maintaining freedom of expression? It can be useful to have training in place about the organisation’s need for political independence and the requirement to protect its reputation.
Additionally, codes of conduct that apply to trustees, staff and volunteers which include expectations of behaviours and social media use are invaluable. But any code is only as good as its application.
As such, implementation of brave and safer spaces practices can be important, especially when protecting those from marginalised or vulnerable groups.
This learning comes from Brian Arao and Kristi Clemens’ work in relation to framing dialogue within an organisation about diversity and social justice. In group or community spaces, there is and should be, naturally, a convergence of many different personalities and experiences at the table.
For views to be heard, an organisation will need to set a baseline for what behaviours are expected from everyone in that community. This means policies need to be intentional, to reflect values, provide clarity and are enforceable.
None of this is easy and implementing good practice and culture in relation to freedom of expression is extremely time consuming. As trustees, there will be times when responsibilities override our instincts and where the time involved will exceed our capacity.
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