09 August 2022
Where the principal reason for dismissal is, or relates to, the employee's political opinions or affiliation, the requirement that the employee must have been continuously employed for at least two years to qualify for unfair dismissal protection does not apply.
In a recent case decided in the Employment Appeal Tribunal (EAT) , an employee was employed as Head of Membership and Policy by an organisation representing housing associations and reported to its CEO. Her terms and conditions of employment included a clause preventing her from having a ‘formal role’ of a political nature. The employer deemed this necessary because of its dealings with government and other political parties. The employee subsequently asked her employer for but was refused consent to stand for Scottish Labour at the General Election which it was accepted would have been a ‘formal role’ of a political nature. She withdrew her candidature but a couple of months later was dismissed with under two years’ service for a variety of reasons, none of which related to her candidature.
She brought an unfair dismissal claim, despite not having two years’ service, on several grounds, including that the true reason for her dismissal was that she had asked her employer for permission to stand as a candidate for Scottish Labour in the General Election – her belief was that she was dismissed because of or for a reason related to her affiliation with a political party.
The EAT held that if the employee had been dismissed because she wanted to stand for election, this could not relate to her political opinions or affiliation. The reason for her dismissal in such circumstances was not the content of her opinions or the identity of the party she wished to stand for – these being the purpose for which the legislation was intended. The employee’s claim therefore failed without needing to consider the evidence as to whether that was the reason or principal reason for her dismissal.
Whilst there have not been many recent cases involving political opinions or affiliations, that could change if political opinions polarise, and we also see more dismissals if employers embark on workforce restructuring programmes because of the economic outlook.
The case is also a timely reminder to employers when restructuring their workforce that employees may still claim unfair dismissal despite not having two years’ continuous service, if the context in which they were dismissed establishes the fact pattern needed for claims which are exceptions to that rule. There are several separate such exemptions that can be relied on by employees with less than two years’ service.
If you are an employer requiring guidance on individual or workforce restructuring, please contact Charlie Barnes.