In Scottish Federation of Housing Associations v Jones the EAT has ruled that the exception to the two years' qualifying period for dismissals where the reason relates to the employee's political opinions or affiliation did not apply to a dismissal for being in breach of a requirement for political neutrality.

Employees generally need two years' continuous service to bring a claim for unfair dismissal, but there are a number of exceptions.  One such exception is where the reason or principal reason for the dismissal is, or relates to, the employee's political opinions or affiliation (s.108(4) Employment Rights Act 1996 (ERA)).  

BACKGROUND

Ms Jones was employed by Scottish Federation of Housing Associations (SFHA). SFHA has dealings with government and other political parties. As such, they placed considerable importance on remaining politically neutral and Ms Jones' contract therefore contained a 'political neutrality' clause.

She sought permission from SFHA to stand as a Scottish Labour candidate in the 2019 General Election. SFHA refused permission and she was dismissed the following month. Her request was not cited as a reason for the dismissal.

She brought a claim of unfair dismissal stating that her request had been the true reason for her dismissal. She also claimed 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".

The Employment Tribunal allowed her claims, but the EAT disagreed in part.  

It agreed that Ms Jones' request to stand for Scottish Labour in the general election had been the primary reason for her dismissal but was not willing to agree that her dismissal was because of her political opinions or affiliation.  Her political opinions and the identity of the political party were not the reason or principal reason for her dismissal, rather it was because she was not willing to keep politically neutral.  

The EAT held that in order for s108(4) ERA to apply as Parliament intended, the content of the employee's opinions or the identity of the party they wish to stand for, must form part of the reasoning leading to the dismissal.

The EAT, however, dismissed SFHA's appeal in relation to discrimination. The EAT stated that Ms Jones' belief, that persons should stand for office if democracy is to thrive, was sufficiently cogent to be considered protected as a philosophical belief under the Equality Act 2010 (EqA).

IMPLICATIONS

This decision helps to clarify the scope of s108(4) ERA and confirms that it is a narrow exception which was designed to "address the mischief" of dismissals arising from the content of a person's political opinions or the identity of the party with which the individual is affiliated.  Dismissal of an employee for breaching a political neutrality clause by failing to act in a way that lacks neutrality, will not be automatically unfair under s108(4) of the ERA.

As for discrimination, while there is some uncertainty over the extent to which political beliefs are protected under the EqA, the EAT in Grainger held that support of a political party does not of itself amount to a philosophical belief, but a belief in a political philosophy or doctrine might qualify.  In this case, the EAT has confirmed that an employee's belief in active political participation may be considered a protected characteristic under the EqA.

Contributors Katherine Moore and Rory Parton