Unfair dismissal claim relating to political opinion or affiliation can be brought without two years’ service

EAT: Dismissal for lack of political neutrality would not relate to political opinion or affiliation.

There are a number of circumstances in which employees can bring an unfair dismissal claim without having two years’ continuous employment.

One of these is if the principal reason for the dismissal is, or relates to, the employee's political opinions or affiliation (section 108(4) Employment Rights Act 1996 (ERA)).

This exception to the qualifying length of service for unfair dismissal claims arose from the 2013 European Court of Human Rights case of Redfearn v United Kingdom which held that UK law was incompatible with Article 11 of the European Convention on Human Rights (Convention). This concerns the right to freedom of association and includes the right to join political parties.

A dismissal because of or relating to political opinion or affiliation will not be automatically unfair (unlike for example health and safety or whistleblowing related dismissals). This means that the tribunal will consider not only whether there was a fair reason for the dismissal but also whether the dismissal was fair in all the circumstances, including the process followed by the employer. However, where an employee has been dismissed in breach of the Article 11 Convention right, it is likely that the dismissal will be found to be unfair.

Other claims where qualifying length of service does not apply

Unfair dismissal claims can also be brought before two years’ continuous employment where dismissal relates to (amongst other things):

• pregnancy or childbirth
• “blowing the whistle”;
• health and safety related activities;
• trade union activities;
• exercising various time off rights; and
• asserting a statutory right under the ERA.

In addition, many other claims have no requirement for any particular length of service. These include claims for discrimination (which can be brought even before employment commences), breach of contract, unlawful deduction from wages, and detriment claims including those in relation to fixed term or part time status.

When will dismissal relate to political opinion or affiliation?

The Redfearn case concerned a bus driver who was a member of the BNP. Mr Redfearn was not dismissed because of his political opinions or affiliation, but because of operational difficulties arising from these. In other words, the dismissal related to his political opinions and affiliation. Section 108(4) applies where the dismissal is either because of or relates to the employee’s political opinions or affiliation.

A recent EAT case has considered how far this protection extends and whether it applies where a dismissal is because of the employee’s failure to be politically neutral: will this be a dismissal relating to political opinions and affiliation?

Case details: Scottish Federation of Housing Associations v Jones

Ms Jones was employed by the Scottish Federation of Housing Associations (SFHA) as Head of Membership and Policy. Her employment contract included a clause headed “Political Activity”. She was not prohibited from joining a political party but was prohibited from having a “formal role” of a political nature. A few months into her role, Ms Jones informed her employers that she wished to stand as a candidate for Scottish Labour at the next general election. SFHA did not consent and Ms Jones withdrew her candidacy. Ms Jones was dismissed around six months after her employment commenced.

Ms Jones brought a claim to an employment tribunal, arguing that she has been unfairly dismissed in relation to her political opinions and affiliation. She also alleged that she had been discriminated against on the basis of her philosophical belief that “those with the relevant skills, ability and passion should participate in the democratic process”.

At a preliminary hearing, the tribunal decided that Ms Jones would be able to rely on section 108(4) ERA to bring her unfair dismissal claim if she could show that she had been dismissed because she sought to stand for election. The tribunal was of the view that the claimant’s political opinions and affiliation to the Labour Party would be related to her dismissal if this were to be the case, as without such opinions and affiliation she would not have sought to stand as a candidate.

The tribunal also found that Ms Jones’ philosophical belief was protected under the Equality Act 2010.

The Employment Appeal Tribunal (EAT) agreed that Ms Jones’ belief was a protected belief under the Equality Act as it: was genuinely held; was not an opinion or viewpoint based on the present state of information available; was a belief as to a weighty and substantial aspect of human life and behaviour; attained a certain level of cogency, seriousness, cohesion and importance; and was worthy of respect in a democratic society, was not incompatible with human dignity and did not conflict with the fundamental rights of others.

However, the EAT did not agree that Ms Jones could rely on section 108(4) ERA to bring her unfair dismissal claim without two years’ service. The EAT noted that the legislation was designed to apply to dismissals arising from the content of a person's political opinions or the particular political party to which they are affiliated. The EAT held that the alleged reason for the dismissal here was not the content of Ms Jones’ political opinions or membership of a particular political party, but a failure to be politically neutral. The EAT determined that this did not relate to Ms Jones’ particular political opinions or affiliation.

Risk of claims relating to political opinions and affiliation

A requirement to remain politically neutral (or at least not to publicise political opinion and affiliation) applies to some roles in the public and third sector, particularly where the employee in question is senior and interacts with Government departments as part of their role.

It is important to note that the employee in this case was not prohibited from joining any political party or holding certain opinions (which would have been potentially in breach of her Article 11 rights). Rather she was prohibited from taking a formal role in a political party.

In cases where section 108(4) ERA is relied upon to bring an unfair dismissal claim, the tribunal will assess the fairness of the dismissal in the round. To mitigate the risks of a claim, employers should ensure that a fair disciplinary process is followed, even where the employee has not yet reached two years’ service. The fair and non-discriminatory reasons for action taken should be carefully documented as part of this process.

Employers should seek legal advice before carrying through a dismissal or other detrimental action which might relate to a requirement not to engage in political activity or to be politically neutral. Although this EAT decision suggests a dismissal relating to a breach of a requirement to be politically neutral will not fall into the scope of section 108(4) ERA, it is possible that a dismissal arising from political activity could be found to be unfair in some circumstances.

Commentators have noted that this is a rather narrow interpretation of section 108(4) ERA and it may be that future cases will explore further the reach of this provision.