Dismissal for a political affiliation

Liz Stevens looks at a recent unfair dismissal case, based on the grounds of political affiliation.

The Employment Appeal Tribunal (EAT) has given guidance on dismissals relating to political opinions or affiliations and the circumstances surrounding when a claimant is entitled to bring a claim for unfair dismissal on those grounds, without the need for two years’ service.

Scottish Federation of Housing Associations v Jones [2022] EAT 114

Facts

The claimant, J, was employed as Head of Membership and Policy by a representative body for housing associations. The respondent maintained a politically neutral stance and J’s contract contained an express term preventing her from holding a ‘formal role’ of a political nature. In October 2019, after six months of employment in the role, J informed the respondent that she wished to stand as a candidate for election as an MP in the forthcoming General Election. The respondent refused to consent to this and J subsequently withdrew her candidacy. In November 2019, J was dismissed on various grounds, not including her request to stand as an MP.

J brought a claim for unfair dismissal, claiming that the true reason for her dismissal was that she had sought to stand as a candidate for a political party in the General Election. She did not have the two years of service usually necessary to bring a claim for unfair dismissal, however, this qualifying period is not required if the reason, (or principal reason), for dismissal is the employee’s political opinions or affiliation (section 108(4) Employment Rights Act 1996). She also brought a claim for discrimination on the grounds of philosophical belief under the Equality Act 2010.

The claimant had accepted that she was not dismissed purely on the grounds of her political opinions or political membership, since membership of the political party was permitted by her employer. At a preliminary hearing, the tribunal held that J’s opinions and affiliation with the political party meant that she would not otherwise have stood for election, which brought her within the remit of s108(4). The tribunal also held that her belief in participation in the democratic process was a protected belief under the Equality Act 2010.

The respondent appealed to the EAT.

EAT decision

The EAT has upheld the appeal in relation to the claim for unfair dismissal. It did not agree with the tribunal that J’s dismissal fell within s108(4); as a consequence she did not have sufficient length of service to bring a claim.

The EAT held that a dismissal for not being politically neutral does not fall within s108(4). It was a provision designed to address dismissals arising from the content of a person’s political opinions, or the identity of the party with which the person is affiliated. If these do not form part of the reasoning leading to the dismissal, the subsection has no application. Similarly, it does not apply to those employees dismissed, as in this case, because they lack neutrality. The EAT was satisfied that J’s political opinions and affiliation were not the reason, or the principal reason, for her dismissal.

In relation to the tribunal’s finding that J’s belief was protected under the Equality Act 2010, the EAT rejected the respondent’s submission that the belief in question, (a belief in participation in the democratic process), was too vague to be worthy of protection. This means that she was permitted to proceed with her claim for discrimination, to be heard at a full hearing.

The Birketts View

This is an interesting decision relating to a provision of the Employment Rights Act 1996 that does not arise very often in practice. It draws a distinction between a dismissal relating to or based on an individual’s political opinions or affiliations, and a dismissal where the employer’s policy (as expressed by a contractual term) is to be politically neutral. It will be much harder for an employer to defend a dismissal in these circumstances without an express contractual term.

Note that even if the claimant had been able to persuade the tribunal that her dismissal was due to her political opinions or affiliations, this would only have disapplied the two year qualifying period for bringing an unfair dismissal claim. It would still have been open to the respondent to defend the claim on the basis that the dismissal was fair.

Liz Stevens is a Professional Support Lawyer at Birketts.