Protection of Political Opinion and Belief
As we gear up for the upcoming general election, the heightened political atmosphere can inevitably spill over into the workplace. It is hoped that disagreement between employees in relation to voting intention can remain civil. But what is the legal protection for those who hold certain political beliefs? Could negative or derogatory comments relating to an employee’s political opinion potentially amount to unlawful harassment?
Here we look at the legal framework governing political expression at work, the rights of employees, and the need for employers to maintain a respectful and inclusive work environment.
Understanding the Legal Framework
Equality Act 2010
The Equality Act 2010 prohibits discrimination on the grounds of certain “protected characteristics” one of which is “religion or belief”. “Belief” is further defined as “philosophical belief” (under the original Regulations it was “similar philosophical belief”).
We have covered in previous blogs the definition of philosophical belief, which must:
- Be genuinely held
- Be a belief rather than merely an opinion or viewpoint
- Be related to a weighty and substantial aspect of human life
- Attain a certain level of cogency, seriousness, cohesion, and importance
- Be worthy of respect in a democratic society, and not incompatible with human dignity, and the fundamental rights of others
In many cases this definition will not include political beliefs, or at least party political opinions and affiliation. The Employment Appeal Tribunal (“EAT”) has held that support of a political party does not of itself amount to a philosophical belief. However a belief in a specific political philosophy or doctrine could do so. For example, beliefs in democratic socialism, participatory democracy, free-market capitalism, or nationalism may all be protected. However, beliefs that are extreme or promote violence or discrimination are highly unlikely to be protected.
Employment Rights Act
Readers will be aware that in most cases, employees require 2 years’ continuo0us service to claim unfair dismissal. However, where the main reason for dismissal is a “prohibited reason” the dismissal is automatically unfair (the employer cannot argue it acted reasonably) and there is no service requirement (except for TUPE-related dismissals). Prohibited reasons include cases where the employee has made whistleblowing disclosures, taken certain steps related to health and safety, asserted a statutory right etc.
The case where an employee is dismissed (or constructively dismissed) due to political belief, is an unusual one. The rules relate to the scenario where the principal reason for dismissal is, or is related to, the employee’s political opinions or affiliation. There is no minimum length of continuous service required, but the dismissal is not automatically unfair, and the employer can seek to defend the dismissal in the usual way, seeking to show a potentially fair reason for dismissal and that it acted reasonably in all the circumstances in dismissing.
The law was changed to remove the need for qualifying service in such cases, as a response to the 2013 European Court of Human Rights decision in Redfearn v UK. The Court had to deal with a claim from a bus driver dismissed due to his affiliation with the British National Party, and the Court held it was unlawful to exclude his claim by insisting on a period of qualifying service. The law was changed to remove this requirement but still allow an employer to show that a dismissal was justified.
In the case of SFHA v Jones (2022), the EAT decided that dismissing an employee due to their failure to be politically neutral, would not contravene the Act, as the dismissal would not relate to the employee’s specific political beliefs.
Freedom of Expression
Employees have the right, in general terms, to hold and express political beliefs.
This would usually include participating in political activities, wearing political symbols, and discussing political views. However, this right is not absolute and must be balanced with the rights of others and the employer’s legitimate interests. This is particularly acute where there are good reasons for the employer, and those representing it, needing to be seen to be politically neutral.
Employee remedies
To summarise the above, the following claims could arise:
- Where an employee’s political views amount to a protected philosophical belief, they could bring a claim for unlawful discrimination (direct or indirect) or harassment, if treated unfavourably by the employer, or by colleagues, and would not need to leave their employment in order to bring a claim. Compensation for discrimination is, of course, uncapped.
- Where the political views do not amount to a protected philosophical belief, the employee will nevertheless be able to bring a claim of unfair dismissal if dismissed by the employer due to their beliefs, or if constructively dismissed. For example, if the employer mistreats the employee (short of dismissal) or permits others to do so, due to political opinion or affiliation, and this amounts to a material breach of contract by the employer, the employee may be able to resign and claim unfair constructive dismissal, with no minimum service requirement.
Action points for employers
Employers have a duty to create and maintain a respectful and inclusive workplace. This includes ensuring that discussions about political beliefs do not lead to harassment, discrimination, bullying, or any other unacceptable conduct. Employers should establish clear policies that outline acceptable behaviour and the consequences of violating these standards.
Policies regarding political expression at work should be fair, transparent, and consistently applied. This includes dress codes, the display of political symbols, and the use of company resources for political activities.
While there may be good reason in some cases for employers to be politically partisan, they need to ensure that this does not adversely impact on individual employees. In most cases it will be sensible for employers to adopt a neutral position, particularly in more highly-charged times such as the run up to a general election. This will help prevent conflict and ensure that all employees feel respected and valued.
Conclusion
As we approach the general election, it is important for employers to understand the protection of political opinion and belief in the workplace. Be aware of the risks in relation to discrimination and unfair/constructive dismissal. While “banter” is common in many workplaces, a mutual respect between employees (and between employer and employee) is necessary, and the employer should make clear what sort of conduct will not be tolerated.
If you need further guidance on this topic or any other employment law matter, our team of experienced employment law experts is here to help.
This update contains general information only and does not constitute legal or other professional advice.
Douglas Strang, Senior Associate: dst@bto.co.uk / 0141 221 8012 / Connect with Douglas on LinkedIn
