The Employment Appeal Tribunal (EAT) has held in Scottish Federation of Housing Associations v Jones that the protection provided by section 108(4) Employment Rights Act (ERA) 1996 applies to cases where the employee’s political opinions or affiliation are the reason for the dismissal, but not where they are subsidiary considerations. It also held that a belief in “participatory democracy” is a protected philosophical belief under the Equality Act 2010.
Ms Jones was represented by Thompsons Scotland.
Under the terms of her contract, Ms Jones was prevented from taking on a “formal role” of a political nature, such as standing as a candidate for a political party. It did not, however, prevent her from being a member of a political party.
In October 2019, she informed her employers that she wished to stand for Scottish Labour at the next general election. When this was refused, she withdrew her candidature. A month later, she was dismissed. The Federation gave a variety of reasons for her dismissal which did not include her request to stand for Scottish Labour.
As she did not have the requisite two years’ qualifying period under section 108(1) ERA, Ms Jones sought to bring a claim of unfair dismissal under section 108(4). She also claimed discrimination under section 10 of the Equality Act 2010 (EqA) on the basis that she held a philosophical belief that “those with the relevant skills, ability and passion should participate in the democratic process”.
Section 108(4) ERA states that section 108(1) does not apply if “the reason (or, if more than one, the principal reason) for the dismissal is, or relates to, the employee's political opinions or affiliation”.
Section 10(2) EqA states that a “belief” means any religion or philosophical belief and a reference to a belief includes a reference to a lack of belief.
At a preliminary hearing to determine a number of jurisdictional issues, the tribunal assumed that Ms Jones had been dismissed because she had asked for permission to stand as a candidate for Scottish Labour. As such, it asked whether she was entitled to bring a claim for unfair dismissal by virtue of section 108(4) ERA even though she had not worked for the qualifying period under section 108(1) and/or whether she had a protected philosophical belief which would enable her to pursue a claim for dismissal under the Equality Act.
It concluded that, even though Ms Jones’ political opinions and affiliation to the Labour Party had nothing directly to do with the putative dismissal, they were nevertheless “related to” it as she would not otherwise have sought to stand as a candidate had she not had those opinions/affiliation.
In relation to her discrimination claim, the judge held that her belief satisfied the test set out in Grainger plc and ors v Nicholson (weekly LELR 147). In other words, it was honestly held and was more than an opinion or viewpoint; it was a weighty and substantial aspect of human life and behaviour; it attained a certain level of cogency, seriousness, cohesion and importance; and was worthy of respect in a democratic society.
The Federation appealed against both decisions.
The EAT allowed the appeal, but only in relation to the unfair dismissal claim. Whilst it acknowledged that Ms Jones would not have been dismissed had she not been accepted as the candidate for Scottish Labour, it held that section 108(4) should not be read literally. As such, it held that she was not dismissed because of her political opinions or her political affiliation (the purpose of the sub-section), but because she had asked for permission to stand as a candidate in the general election and thus was not willing to remain politically neutral in contravention of the neutrality clause in her contract.
However, the EAT rejected the Federation’s appeal with regard to the discrimination claim, holding that a belief in “participatory democracy” is a belief that relates to a crucial aspect of the form of government exercised in the UK. The desirability of securing participation at all levels in a parliamentary democracy is obviously a matter of great moment. Without adequate engagement by the electorate and by extension candidates from among the electorate, democracy as a mode of government would lose its efficacy and legitimacy. It was easy to accept, therefore, that Ms Jones’ belief was a serious one in the sense that it dealt with a serious issue and important on that account. It was clear that she took her belief seriously and was demonstrative of the genuineness of her beliefs.
The EAT has held that section 108(4) 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 person is affiliated. The EAT did not accept that in the particular circumstances of Ms Jones’ case the relationship between her dismissal and her political opinions and affiliation was sufficiently proximate to the purpose of section 108(4) to come within its scope. The case does confirm, however, that protection is provided if the reason or principal reason for the dismissal is the employee’s political opinions or affiliation.
Importantly, in light of the EAT’s decision, where an employee or worker is dismissed or suffers a detriment because they have requested permission to stand for election, stated an intention to stand for election or in some other way manifested their belief in “participatory democracy”, they will now be able to bring a claim under the EqA. This, in particular, is likely to have a direct impact on political neutrality clauses which are common in the contracts of civil servants. Such clauses are now likely to directly conflict with a person’s right to participate in the democratic process.