Special rules for dismissals relating to political opinions

In the majority of cases, an employee must have worked for at least two continuous years with the same employer to be able to raise an unfair dismissal claim to an employment tribunal. However, as with many aspects of employment legislation, there are some limited exemptions to this rule.  

Under s108(4) of the Employment Rights Act 1996, employees are able to raise a claim for unfair dismissal, even if they don’t have 2 years’ service, if the dismissal relates to their political opinions or affiliations. A recent judgment of the case ‘Scottish Federation of Housing Associations (SFHA) v Jones’ assessed the applications of this legislation.  

The respondent, SFHA, had dealings with the Scottish Government and other political parties. For this reason, it was reasonable for them to include a political neutrality clause within their employees’ contractual terms and conditions. This meant they could not have any allegiance or affiliation to any specific political party. However, an employee was a strong supporter of the Labour Party and approached their employer for permission to stand as a Labour candidate in the 2019 General Election. The employer refused and she withdrew her candidature.  

At a later meeting, she was dismissed for undisclosed reasons. But, the employee raised an unfair dismissal claim under s108(4), despite not having 2 years’ service, saying that her affiliation with and support for the Labour Party played a part in her dismissal. 

The Employment Tribunal initially upheld her claim, saying that the employee’s political opinions and affiliations were the reason for her dismissal, making it unfair. It further allowed the claim to proceed without her having 2 years’ service due to the exemption provided within clause s108(4).   

However, following an appeal to the Employment Appeal Tribunal, this was overturned, with the EAT confirming that s108(4) did not apply. Instead, the EAT concluded that, whilst the employee’s request to stand as a Labour candidate in the General Election was the primary reason for her dismissal, this does not necessarily mean that the dismissal was due to her political opinions or affiliations.  

Rather, it decided that her request meant she could not remain politically neutral (as was required in her employment contract), which ultimately caused her dismissal. The EAT highlighted that a requirement to remain politically neutral does not fall within the special protections relating to political affiliations or opinions under s108(4). Therefore, the employee (with less than 2 years’ service) had no basis to succeed in an ordinary unfair dismissal claim, nor to bring a claim under s108(4). 

The case helps employers better understand the risks associated with dismissing an employee for reasons relating to their political opinions and affiliations. But, it also strengths the use of political neutrality clauses within contracts and the actions which are permissible should an employee breach it.  

This being said, it is worth highlighting that a separate claim for philosophical belief discrimination was raised at the same time, which could be successful. The employee’s belief in this case was that persons should stand for office if democracy is to thrive (participatory democracy) or, in other words, a belief in active political participation. The EAT confirmed that this meets the necessary tests to be classified as a philosophical belief under the Equality Act 2010 and remitted this part of the claim back to the ET to determine whether or not she was discriminated against as a result of holding her protected belief.  

Suggested Resources