Guidance note: political beliefs and the employment relationship

The line between private and public life is becoming more blurred. Never has this been clearer than during our current period of political turmoil, in which people are anxious to express their views on divisive issues, most often on social media, but also by attending protests and speaking publicly. In the wake of the most recent developments between Israel and Palestine, we have observed an increasing confusion about when it is appropriate for employers to intervene and discipline or dismiss employees for expressions of political views. It is not only in recent months that we have seen this confusion, however, as over the years cases have been brought by employees who have been disciplined for expressing views on issues ranging from gay marriage to republicanism.

This alert is intended to briefly outline the law before setting out the most important considerations for employers and employees in what is a complex and changing area.

The most relevant claims that could arise from taking disciplinary action against an employee due to political expressions are unfair dismissal and discrimination. Generally, a dismissal due to political opinion or affiliation without a further finding of misconduct is likely to be found to be unfair, and, under the Employment Rights Act 1996, an employee does not need a qualifying length of service to claim for unfair dismissal on this ground.

Whether a dismissal on misconduct grounds in this context is justified is highly fact-specific and can depend on a number of factors. For example, in one case, a manager for a private housing trust was found to have been wrongfully demoted after writing on his personal Facebook page that the state ‘should not impose its rules on places of faith and conscience’ in relation to the news that gay church marriages were set to be approved. Here, it was important that it was clearly his personal account, that the only people who would have seen the comments were those who had chosen to add him as a friend, and that his views were expressed moderately. In contrast, an employee of the British Council was found not to have been unfairly dismissed after writing comments beneath a public Facebook post by someone else that called the then baby Prince George a ‘f*cking d*ckhead’. Her comments, while not as obscene as the post, disparaged the monarchy and stated that Prince George was an example of ‘white privilege’. Important here was the fact that the British Council has an especially close relationship with the monarchy, the fact that all employees had been warned about the danger of illusory privacy on social media, and that the employee’s comments fell under the definition of gross misconduct as set out in her contract.

Political views can also potentially be seen as falling within the ‘religion or belief’ protected characteristic in the Equality Act 2010, in which case discrimination law also comes into play. Whether a belief can be seen as protected is, again, highly contextual. The key criteria are 1) whether it is genuinely held, 2) whether it is a belief as opposed to an opinion or viewpoint based on available information, 3) whether it is a belief as to a weighty and substantial aspect of human life and behaviour, 4) whether it is of a certain level of cogency and importance, and 5) whether it is worthy of respect in a democratic society. The tribunal seems to have been increasingly willing to accommodate political beliefs within this framework, and the following have all been recognised as protected:

• Genuine belief in national independence as it relates to Brexit
• Belief in the abhorrence of paedophilia and domestic violence towards women
• Belief that the UK should not be ruled by a hereditary monarch
• Belief that one cannot change one’s biological sex
• Opposition to critical race theory

Most recently, the ET case of Miller v University of Bristol confirms that tribunals are willing to recognise beliefs relating to the Israel-Palestine conflict, in that case anti-Zionist beliefs, as protected.

The key question to ask when determining whether it would be discriminatory to discipline an employee for an expression of views is to consider whether the reason for disciplinary action is the employee’s belief itself or simply an inappropriate manifestation of that belief, the latter of which is not discrimination. It should then be considered whether the disciplinary measure is a proportionate response, considering the content of the expression, the extent and nature of the intrusion on others’ rights in expressing the view, and any impact on the employer’s business or reputation. An employer will also want to prevent discrimination claims between employees, which may arise if one employee treats another unfavourably because of a difference in beliefs. As with unfair dismissal cases, a polite expression on an employee’s private social media may differ significantly from one which is disrespectful or where the employee may be seen to be representing the employer at the time of speaking.

There are a few key guidelines for employers and employees to understand when navigating this difficult area.

For employers:

• You should have a clear policy on political expressions made while at work or while an employee is representing you. It is acceptable to prohibit employees making political expressions to customers or clients while acting in that capacity, and this should be spelled out if you wish to take this route. While it is impossible and undesirable to prevent colleagues politely discussing politics among themselves during the workday, policies should emphasise the need for respect and understanding, and draw a clear line where hate speech, harassment, or discrimination may come into play.
• It is far more difficult to justify policies which restrict political expressions made by employees while not acting in that capacity. It is sensible to have a social media use policy that emphasises the need for employees to act responsibly and respectfully, and to ensure that they do not hold themselves out as representing the employer when speaking in a personal capacity. Freedom of belief and expression are human rights, and this should take precedence when considering how you approach such a policy.
• If seeking to discipline an employee for political expressions, always follow fair procedure. As alluded to above, where such expressions are made outside of work, particular care needs to be taken to assess whether disciplinary action is appropriate in light of the importance of freedom of expression. If you are seeking to dismiss an employee, you should always consider if a less severe measure is appropriate in the circumstances. Additionally, policies should be applied consistently between employees, and should not be applied in a discriminatory way between different employees because of a subjective opinion about the content of their beliefs.
• Some social media cases can lead to significant public pressure on an employer to dismiss, particularly where the employer is high-profile. Mere pressure will not be enough, however, to dismiss an employee on the grounds of their political expressions.

For employees:

• You should be aware of the importance of your right to freedom of belief and expression, particularly in your personal life, and the potential for an unfair dismissal or discrimination claim if you face disciplinary action or dismissal for making a political expression.
• The first and most important step to take is to acquaint yourself with your employer’s policies on social media use and political expressions while at work, if there are any, and be sure to follow them.
• If you are politically active in your personal life, take sensible steps to ensure your employer has no grounds to discipline you. These include:
  • Ensure you do not hold yourself out as representing your employer at any time. While you are able to mention who you work for, say in your social media bio, if you wish, this may increase the risks you face. Always make sure it is understood that you are speaking in a personal capacity, both online and in person.
  • Always make sure to express your views in a respectful way, especially if you feel they could be controversial or upsetting to some. Remember that the ultimate goal of political dialogue is to learn and understand, rather than to score points or offend for the sake of it.
  • Consider making your personal social media accounts private so only people you have added can see your content.

If you have any questions about the way political beliefs and expressions should be handled in the workplace, either as an employer or as an employee, do get in touch with us at the details below.