Political opinions and unfair dismissal

Normally an employee needs two years’ continuous service to bring an unfair dismissal claim. There are some exceptions to this rule, including if the reason for the dismissal relates to the employee’s political opinions or affiliations (section 108(4) Employment Rights Act 1996). The EAT has looked at this exception recently in Scottish Federation of Housing Associations v Jones.

The employee was employed as Head of Membership and Policy for a short period. The employer dealt with government and other political parties and needed to be politically neutral. The employee’s employment contract contained a clause which did not stop her from being a member of a political party but did prevent her from taking up a ‘formal’ political role. The employee wanted to stand as a Scottish Labour MP in upcoming elections. The employer did not give consent and she withdrew from the race. She was dismissed a short time later, for a variety of reasons but not her request to stand as a Scottish Labour MP. The employee said she had been dismissed for this reason and brought an unfair dismissal claim, relying on section 108(4) in order to get around the requirement for two years’ service.

The employment tribunal said that if the employee could show that she was dismissed because she had tried to stand for election, she could rely on section 108(4) – her political opinions and affiliations were ‘related to’ her dismissal as without them she wouldn’t have tried to stand as a Scottish Labour MP. The EAT disagreed. Section 108(4) was designed to address dismissals relating to the content of a person’s political opinions or their affiliation with a particular political party. The exception does not apply where a person’s political opinions or the political party they want to stand for do not form part of the reason for dismissal, nor does it apply if someone is dismissed for not being politically neutral or acting in a way which undermines their political neutrality. The EAT said that political neutrality was the opposite of the issue that section 108(4) was designed to address.

The employee accepted that she had not been dismissed because she was a member of the Scottish Labour party or because of her political opinions, but because she wanted to stand as an MP for the party. The EAT accepted that she would not have been dismissed had she not wanted to stand as an MP, and her dismissal related to her political opinions and affiliations in a literal way. However, her political beliefs and affiliations were not the reason or principal reason for her dismissal. She was dismissed because she wanted to be a political candidate, and – in the absence of not being for her membership or political opinions, which the employee accepted – the only possible reason left for her dismissal was that she was not willing to remain politically neutral. That did not fall within section 108(4) so she could not bring her unfair dismissal claim. However,  the EAT confirmed that a belief in participatory democracy – that those with the relevant skills, ability and passion should participate in the democratic process - is a protected philosophical belief under section 10 of the Equality Act 2010.

This case is good news for employers and confirms that the section 108(4) exception to the two-year service requirement for bringing an unfair dismissal case will be construed narrowly by the courts. An employee can only use this section if the reason for dismissal is their political opinions or affiliation to a political party. In this case, the employee was dismissed because she wanted to stand as an MP when there was a contractual clause preventing her from taking up a formal role of a political nature. The reason for her dismissal was not her political opinions or affiliations but the fact that she wasn’t willing to be politically neutral, and this was not protected by section 108(4).  

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