As the independence referendum looms, charities should be aware of the dangers of discriminating against staff members for political beliefs, says Lindsay Martin, a solicitor at Harper Macleod
Politics has the ability to cause debate like few other subjects, particularly in the current climate.
With the Scottish independence referendum taking place in September, and a general election likely to be held next year, a recent employment tribunal judgment provides a timely warning to organisations that political views may be protected under the Equality Act 2010.
The Equality Act prohibits discrimination in the workplace in respect of religion, religious belief and philosophical belief. Before the act came into force, a government spokesperson stated the last category was not intended to cover political beliefs. However, the act itself is not so clear and the scope of philosophical belief has been the subject of much debate and numerous cases. The burning question recently facing us has been whether a political belief amounts to a philosophical belief for the purpose of bringing a discrimination claim.
When considering the scope of the act, the Employment Appeal Tribunal held that a philosophical belief was one which: is genuinely held; is a belief and not an opinion or viewpoint; is in relation to a weighty and substantial aspect of human life and behaviour; attains a certain level of cogency, seriousness, cohesion and importance; and is worthy of respect in a democratic society but need not “allude to a fully fledged system of thought”. It then provided the useful summation that, while mere support of a political party would not qualify as a philosophical belief, a belief in a political philosophy or doctrine might amount to one.
Politics has the ability to cause debate like few other subjects
In the recent case of Olivier v Department of Work and Pensions (DWP), an employment tribunal gave further guidance on what amounts to a philosophical belief in the context of political views.
Olivier was elected as a Labour councillor during the course of his employment with the DWP. Subsequently, he had a letter published in a local newspaper criticising the government’s taxation and benefits policies. Allegedly as a result of this, he was dismissed. He raised a claim for unfair dismissal and direct discrimination on the grounds of his philosophical belief, namely his affiliation with the Labour party. He was of the view the Labour party enshrined “democratic socialism” and this was a set of core values by which he chose to live his life and claimed that such belief fell within the Act.
At a preliminary hearing, the tribunal held this belief was one which was genuinely held, worthy of respect in a democratic society, and not one which conflicted with the fundamental rights of others.
Olivier’s interest in the Labour party was more than a passing one. He was not simply supporting the party, given his involvement with it and his strong connection with its history. He was therefore allowed to continue with his claim to a full hearing to determine whether he had been subject to discrimination.
This decision is not directly binding on other tribunals, nor did the tribunal go so far as to say membership or support of a political party itself will give rise to a philosophical belief. However, it does suggest that, depending on the individual circumstances, the nature of the employee’s political affiliation and whether they strongly identify with the party’s values (for example, through heavy involvement in party activity), employees’ political beliefs might fit the definition of a philosophical belief.
Although not a binding decision, it may be persuasive to other tribunals determining similar matters. With the referendum due to take place later this year, employers must be aware that workers with deeply held political views may be protected under the act, if those beliefs lead to difficulties in the workplace.
It’s also useful to note the usual unfair dismissal qualifying period of two years was recently removed by The Enterprise and Regulatory Reform Act 2013 in cases where the reason, or principal reason, for the dismissal “is, or relates to, the employee’s political opinions or affiliation”. Again, this raises important considerations for organisations if difficulties potentially relating to political views arise in the workplace.