Unfair dismissal: was a dismissal for not being politically neutral related to political opinion or affiliation (and thus exempt from requiring two years’ service)?
Employees generally need two years’ service to bring an unfair dismissal claim. However, there are a number of exceptions to this rule, including where the reason or principal reason for dismissal is, or relates to, the employee’s political opinions or affiliation (s108(4) ERA 1996). This exception was introduced in 2013 and the EAT has recently considered it for the first time.
In April 2019, J began work as Head of Membership and Policy for the Scottish Federation of Housing Associations (SFHA). J’s employment contract included a clause regarding permitted political activity. This clause confirmed that being politically neutral at all times was fundamental and, although it permitted J to be a member of a political party, it prevented her from having a formal role of a political nature. In October 2019, J informed SFHA that at the next general election she wished to stand as a Scottish Labour candidate for the MP of Argyll and Bute. J later withdrew her candidature, after the SFHA’s board advised her that it did not consent. In November 2019, SFHA dismissed J, giving various reasons for dismissal that did not refer to her earlier request to stand for political office.
J brought an unfair dismissal claim. As she did not have two years’ service, her ability to claim relied on her being able to establish that the s108(4) exception applied – that the reason for her dismissal was, or related to, her political opinions or affiliation. J accepted that she had not been dismissed because of her membership of the Scottish Labour Party or for her political opinions; she alleged that the true reason for her dismissal was the fact she had sought permission to stand for political office.
At a preliminary hearing, an employment tribunal held that if J could show that she had been dismissed because she sought to stand for election, she could rely on section 108(4) of the ERA 1996 to escape the lack of two years’ service. The tribunal held that J’s political opinions and membership of the Scottish Labour Party were indirectly ‘related to’ her dismissal; without them, J would not have sought to stand as a candidate for political office.
The EAT upheld the SFHA’s appeal and gave guidance on when a dismissal relates to political opinions or affiliation for the purposes of section 108(4). The EAT held that the s108(4) exception to the requirement for two years’ qualifying service for dismissals where the reason or principal reason is, or relates to, the employee’s political opinions or affiliation is to be construed narrowly. The protection is given only if the reason or principal reason for dismissal is the employee’s political opinions or affiliation. On the facts of the case, J was dismissed because she had expressed a desire to be a political candidate, in circumstances where a political activity clause in her employment contract prevented her from having a formal role of a political nature. The reason for J’s dismissal did not involve her membership of a political party, or her political opinions, but was because she was not willing to be politically neutral. The EAT did not accept that a requirement to be politically neutral is a requirement that ‘relates to’ someone’s political opinions or affiliations. As such, section 108(4) could not apply to permit J to bring an unfair dismissal claim without two years’ service.
Scottish Federation of Housing Associations -v- Jones [2022] EAT 114