We are fast approaching one of the most extraordinary and unprecedented general elections in the history of the UK. Extraordinary in the sense that a December election has not been held since 1923 and unprecedented in the sense that the election is overtly linked to a complex experience which the UK has never encountered before: leaving the EU.
If there is any clarity that Brexit has provided, it is that we live in an extremely divided nation. There are divisions in opinion amongst family members, friendship groups and even work colleagues. As election day approaches and tensions build, the latter may start to cause concern for employers.
So, what should employers bear in mind during this election run up? Does employment law have anything to say about political debate or division in the workplace?
The short answer is yes, it does – but it is not very clear. The longer, more detailed answer is that the Equality Act 2010 protects those who hold religious or philosophical beliefs from workplace discrimination, and case law suggests there are certain circumstances in which political beliefs can fall under the ‘philosophical beliefs’ definition.
The legal test for whether a belief amounts to a ‘philosophical belief’ was set out in the case of Grainger plc v Nicholson in 2010. This case questioned whether an employee’s belief in climate change could amount to a ‘philosophical belief’ and consequently be afforded protection under the Equality Act 2010.
The Employment Appeals Tribunal concluded that in order to amount to a ‘philosophical belief’, the belief in question must:
- Be genuinely held
- Be a belief and not an opinion or viewpoint
- Be a belief as to a weighty and substantial aspect of human life and behaviour
- Attain a certain level of cogency, seriousness, cohesion and importance
- Be worthy of respect in a democratic society and not incompatible with human dignity and or conflict with the fundamental rights of others.
Since then, a number of cases have reached the courts requiring decisions on whether an employee can claim protection under the Equality Act in relation to their political beliefs.
In Olivier v Department of Work and Pensions for example, an Employment Tribunal concluded that a belief in the democratic socialist values of the Labour Party amounted to a ‘philosophical belief’ under the Equality Act.
In Redfearn v United Kingdom the European Court of Human Rights (ECHR) held that UK law fell short in disallowing a potential claim for discrimination on the grounds of an employee’s political belief. The employee, Mr Redfearn had been dismissed from his role when his employer found out he had been elected as a local councillor for the British National Party (BNP). The BNP only extended membership to white nationals at the time. Mr Redfearn had been employed as a bus driver, the majority of his passengers were of Asian origin and the employer had been concerned for their welfare. However, in reaching its decision, the ECHR pointed out that there had been no complaints about Mr Redfearn’s work or his conduct at work. The ECHR also stressed that the law cannot only apply to protect people whose views are "favourably received".
Perhaps the case that provides the best insight into the approach judges would take in today’s political climate is McEleny v Ministry of Defence. It was decided that Mr McEleny’s belief in Scottish independence was said to amount to a philosophical belief which was capable of protection, and that his support of the Scottish National Party was a manifestation of this belief.
Obvious comparisons can be drawn between the belief held by Mr McEleney and the beliefs employers are likely to encounter today of Brexit or Remain. In applying the current legal test set out in Grainger plc v Nicholson we can see that it is possible an Employment Tribunal could find an employee’s belief in Brexit or Remain amounts to a philosophical belief. This will however be more likely where:
- the individual in question has consistently argued for or against participation in the EU for a long time, indicating that the belief is genuinely held.
- the individual indicates that the belief is more than a mere opinion. This could mean that those with more rigid mentalities have a higher chance of being protected. The McEleny case points to that fact that the employee must show more than having a certain political perspective. The existence of a wider underlying belief in concepts such as self-determination or pooled sovereignty may suffice.
- the belief permeates many aspects of the person’s life. Taking part in protests, being an active campaigner or donating to certain political campaigns may provide a strong indication of this. What is clear is that simply supporting and having voted for ‘leave’ or ‘remain’ will not be sufficient.
As we can see from the above, it is possible to show that a belief in Brexit or Remain can relate to serious questions such as how a country should be governed. The belief can also relate to weighty and substantial aspects of human behaviour such as the self-determination of people or the freedom of movement. Having said this, the current legal test allows employment tribunals relative flexibility in reaching their decisions, so different employment tribunals could easily come to different conclusions on this issue, depending on the circumstances of the case.
Therefore, employers will probably find more certainty in avoiding the tribunals where they can. Instead it is worthwhile thinking about ways of managing political disagreements and febrile political debate in the workplace, before these turn into more serious, legal issues. Steps employers can take could include:
- Disallowing employees from acting in a way that suggests the employer supports a particular political party or cause, for example wearing political badges on their work uniform.
- Taking action where an employee’s political activities threaten to bring the employer into disrepute.
- Taking steps to prevent employees from imposing political opinions onto colleagues, customers, or suppliers.
- Having robust anti-harassment & bullying, and equal opportunities policies in place. This is particularly important in today’s environment where the political climate has led to an increased risk of harassment against certain staff on the basis of their European nationalities.
- Providing equal opportunities training and informing staff of the importance of not treating colleagues less favourably because of their political beliefs.
It is imperative that any ban on politics at work must be applied consistently, and not be limited to particular political parties.
So, when employees start chanting “Get Brexit Done” or “Stop Brexit, build a brighter future” employers who have taken the necessary protectionary steps can respond with their own slogans along the lines of: “Get Equality Done” and “Stop harassment, build a brighter workplace”!