Following the recent general election, it has been reported that managing directors of two separate firms threatened staff that they may lose their jobs if they did not vote Conservative. In this blog, we look at the legal risks surrounding such political messages.
The managing director of Storm Technologies reportedly wrote to staff on the day of the general election warning that if the Labour party won then there may be changes in the company and they should vote Conservative if they valued their jobs. It was also reported that staff were told that if there were redundancies, Labour supporters would be chosen first. Similarly, the managing director of Jennings Racing is reported to have sent a memo to employees the day before the election warning that jobs would be at risk as result of Labour and Liberal Democrat policies on gambling, and in certain circumstances the company would be unable to continue and jobs would be lost.
The firms have been criticised for their actions. In response, Storm Technologies stated that the comments were part of an ongoing conversation and joke with staff which was taken out of context. The managing director of Jennings Racing stated at the end of the memo that he was only giving his perspective and employees could vote how they wished.
It is not clear from reports whether any staff were in fact influenced by these comments, but there has been concern voiced at what is perceived as an attempt to do so. While there is no legal principle prohibiting the discussion of politics or current affairs in the workplace, the potential impact of comments such as those in the examples above, should be considered. There are also a few legal points and risks which arise from these scenarios.
Unfair Dismissal
Firstly, if an employee was actually to be dismissed for expressing a political view, there is the risk of an unfair dismissal claim. In general terms, it is likely to always be difficult for an employer to point to an employee having different political views or beliefs as being a potentially fair reason justifying dismissal. Even if an employer can establish that, whether dismissing an employee on that basis would fall in the range of reasonable responses would also require serious consideration.
There is additional protection for employees in relation to political beliefs which was introduced following the case of Redfearn v United Kingdom, which concerned a bus driver for Serco who was dismissed due to his being a candidate for the British National Party, concerns about the allegedly racist policies of the BNP and that a significant proportion of customers and employees of Serco were of Asian origin. Mr Redfearn claimed race discrimination and was unsuccessful. However, on appeal to the European Court of Human Rights, it stated that UK law infringed the right to freedom of association by not providing a remedy for discrimination based on political beliefs or unfair dismissal on that ground due to the length of service requirement (Mr Redfearn had less than 2 years’ service so could not bring a standard unfair dismissal claim). As a result, the Enterprise and Regulatory Reform Act 2013 changed the law to the effect that where the reason for an employee’s dismissal ‘is, or relates to, the employee's political opinions or affiliation’, the requirement for an employee to have 2 years continuous service to claim unfair dismissal was removed. This means that if an employee was dismissed because of their support for a particular political party, they could claim unfair dismissal regardless of their length of service (i.e. it is a day 1 right). They would, however, still have to show that their political opinions were the reason for their dismissal, and that their dismissal in all the circumstances was unfair. While the emails to employees discussed above were stated not to be serious or actual threats to employees, this type of communication could be used as evidence by an employee alleging dismissal due to their political views.
In a redundancy situation, an employer should follow a fair process in selecting employees for redundancy, based on objective, measureable selection criteria which are fairly applied. It should go without saying that selecting employees for redundancy based on their political views or voting preferences would be extremely unlikely to stand up to scrutiny in an employment tribunal. While there is no suggestion that the companies facing criticism would have actually carried out a redundancy process in such a manner, if this was to be the case then they would risk claims for unfair dismissal. Again, sending such emails or memos to employees risks providing evidence which could be used to suggest that unfair criteria were applied or that they were selected for redundancy unfairly were a redundancy situation in fact to arise in future. Even if a redundancy process was carried out fairly, the fact that the threat exists could lead employees to point to it as the reason for their dismissal.
Discrimination
A further interesting point of note is that of itself, support for a political party does not fall within the definition of the protected characteristic of religion or belief in terms of the Equality Act. For such views to be protected, it would have to be shown that they amount to a wider philosophical belief which is capable of protection. The threshold for showing this is relatively high, and there are numerous requirements for a belief to meet the level which is protected under the Equality Act, as set down by the courts in the case of Grainger plc and others v Nicholson. These requirements include:
- that the belief must be genuinely held
- it must be a belief rather an opinion or viewpoint based on the present available information
- it must relate to a weighty and substantial aspect of human life and behaviour
- must have attained a level of cogency, seriousness, cohesion and importance; and
- must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.
In most cases, an employee’s support for a political party or their voting intentions in a particular election would not be considered a ‘belief’ for Equality Act purposes. However, in a past case a civil servant with strong ties to the Labour party was found to have a philosophical belief in democratic socialism which was capable of protection (Olivier v Department of Work and Pensions ET/1701407/2013). If an employee could go so far as to show this strength of political belief, then employers making comment on political views and threatening or causing detriment to employees on the basis of those political views could also face claims of discrimination if the employee alleges they were subjected to unfavourable treatment because of that belief.
As noted, it has been reported that the comments in question here were not intended to influence the employees or to be taken as serious threats to their jobs. It has also been suggested that they would be empty threats in any event, as an employer would not necessarily know which party an employee had actually voted for if the employee did not say anything.
However, regardless of the intent behind the statements, there are legal issues which arise, and making such political comments to employees could be taking an unnecessary risk.
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