This was written by Debbie Sadler, associate at Blake Morgan.
With the Scottish Referendum just a month away, and a general election next year, what approach should employers take with employees who are politically active and who, for example, want to take time off for campaigning, or whose political activism could in some way impact on their job?
As the voting deadline for the Scottish Referendum approaches, it is inevitable that workplace discussions will turn to what the future holds for Scotland. Some employees will inevitably feel stronger about the issues than others, leading to tension in the workplace, while others may want to take time off work to be involved in campaigning. Workplace disputes should be handled sensitively as should requests for time off; but what rights do employees have to express political views in the workplace and what pitfalls do employers need to be aware of?
In 2003, Serco Limited employed Mr Redfearn as a bus driver to transport disabled adults and children who were principally of Asian origin. In 2004, he was elected as a BNP councillor; a party whose membership was only open to white nationals and whose stated aim was "reversing the tide of non-white immigration". Although there were no complaints about Mr Redfearn's work, Serco received a number of complaints about his continued employment. At the time, employees needed one year's continuous service to claim unfair dismissal. Mr Redfearn did not have this and was dismissed, ostensibly on the grounds of health and safety.
Mr Redfearn argued that his dismissal breached his Article 11 right to freedom of assembly and association and the European Court of Human Rights[1] agreed. The law was therefore changed in 2013 to protect employees from dismissal on the grounds of political affiliation or opinion from day one of their employment. However, such dismissals can be justified by employers subject to a fair and reasonable process being followed.
The Equality Act 2010 also protects individuals from being discriminated against, harassed, victimised or dismissed by reason of their "philosophical belief". This has been held to include political beliefs as the following case shows.
In October 2013, Mr Olivier alleged that he had been dismissed and discriminated against on the grounds of his belief in "democratic socialism". He worked for the DWP in what was considered a "sensitive post" and so should have sought permission from his manager to engage in political activities which he did not do. He was therefore dismissed. In considering his claim for discrimination, the Employment Tribunal (ET)[2], first had to decide whether or not Mr Olivier fell within the protection of the legislation. Although it felt that simply being a member of a political party was unlikely to meet the test, Mr Olivier was able to establish a long-term commitment to the Labour Party including being elected as a Labour Party County councillor. He was therefore entitled to the protection of the anti-discrimination legislation.
Not all individuals have been so lucky. For example, Mr Kelly[3] alleged that he had been discriminated against on the basis of his Marxist/Trotskyist beliefs. However his claim failed as the Employment Tribunal felt his views were too extreme to be afforded protection and were not worthy of respect in a democratic society.
For those employers with politically sensitive operations, it would be sensible to put in place a policy making clear what is and is not acceptable and the consequences of non-compliance. For others, there is no reason why they cannot operate disciplinary, grievance and holiday policies in the usual way although they do need to be alert to the additional protections afforded to employees in relation to their political beliefs and to consider all facts and circumstances carefully before deciding how to proceed.
