10 April 2015

Workplace Wisdoms: Office politics - General election fever in the workplace

In this episode, we look at:

  • Employment law issues around the expression of political views
  • Tips for managing political debate in the workplace

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Hello and welcome to the latest Workplace Wisdoms podcast: Office politics: General election fever in the workplace.

I’m Hilary O’Connor, a partner in the Employment Team of King & Wood Mallesons.

With the general election just round the corner, political debate is heating up across the nation.  

The longstanding advice for avoiding conflict in social situations is to avoid discussing politics or religion. But for employers across the UK, is that really necessary, or desirable, in the run up to the 7 May general election? In this podcast we provide some key practical issues to consider when your employees start to get caught up in general election fever.

First, you should be aware that the usual two-year qualifying period for unfair dismissal does not apply to employees who are dismissed for their political opinions or affiliations - and this provision applies no matter how unacceptable or abhorrent those opinions.

Sacking staff for their political views is probably fairly uncommon, however. A more likely scenario for employers is where political debate – and perhaps even campaigning – strays into the workplace, with the potential for conflict between staff. What legal issues should you be thinking about when the debate heats up?

Caselaw has established that staff who hold strong political views may, as a result, have protected status under the Equality Act against discrimination on the grounds of religion or belief. This means that subjecting them to any detriment, dismissal or harassment on the basis of those views would be unlawful. 

But which staff, and which views qualify for such protection? The courts seem to be increasingly open to finding that political views qualify for protection against discrimination, just like religious beliefs. In the recent case of Henderson v GMB, the claimant fell out with his employers and argued this was because of his "left wing democratic socialist" views. The Tribunal found this was a philosophical belief within the scope of discrimination legislation, and that Mr Henderson was accordingly entitled to protection. The EAT judge commented that “Philosophical beliefs may be just as fundamental or integral to a person’s individuality and daily life as are religious beliefs”.

However, in practice not all employees expounding political views will be protected under the Equality Act. The courts have issued guidance that, by itself, "support of a political party" does not to attract protection from discrimination. However, a belief in a political philosophy or doctrine, such as socialism, Marxism or free-market capitalism, might qualify for protection. Such a belief would have to fulfil other criteria to be protected, including that the belief:

  • is genuinely held;
  • attains a certain level of “cogency, seriousness, cohesion and importance”, similar to a religious belief; and
  • is worthy of respect in a democratic society, is not incompatible with human dignity and does not conflict with the fundamental rights of others.

But deciding in practice whether a particular employee qualifies for protection under these tests is a very grey area – and, actual Tribunal findings are a mixed bag. In the case of Oliver v DWP, the claimant was a highly committed and active member of the Labour party, such that the Tribunal was able to find his political views were so much a part of his worldview that they were akin to a religion, and hence entitled to the same protection. But in another case, staff holding Trotskyite views were held not to qualify for protection because those views were not, in the view of the Tribunal, “worthy of respect in a democratic society”.   

What does this all mean in practice for employers?

  • The difficulty for employers, as acknowledged in the Henderson case, is that employees’ beliefs - and hence any legal issues relating to them - may not be obvious to the employer. In other words, if a heated debate breaks out in the workplace, the employer may not know which if any of its staff hold views that might qualify them for protection of this kind. Sensitive and balanced management of the situation is likely to be key. Employees do not have an unqualified right to freedom of expression at work and employers are entitled and obliged to ask them to respect other employees' feelings and views. Be particularly alert to the expression of views that may infringe upon the rights of other members of staff – expressing support for an anti-immigration party could conceivably be perceived as harassment, for example, by non-UK nationals in your workforce. 
  • But in my view, some degree of political debate and banter in the workplace is likely to be a healthy sign, of an engaged and good natured workforce. Cracking down on all political debate would no doubt risk throwing out the baby with the pre-election bathwater.
  • Finally, this would also be a good moment to check you have a well-drafted social media policy in place. Recently a trainee at a major law firm brought widespread attention to himself and that firm, by posting a video expressing controversial views in the wake of the Charlie Hebdo attacks. This is a timely reminder: opinions expressed in the office can cause internal friction and the risk of employment liabilities. When those same views are posted on social media, however, the damage can be on a global scale.

We do hope you found this Workplace Wisdoms podcast helpful. Our Employment publications contain more detail on current Government changes and employment practices. You can access these, as well as our previous Workplace Wisdoms podcasts, on the Employment page of our website. 

Thank you for listening and enjoy your day.

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