Advocate Lizzie Beard examines a thorny labour law issue that crosses jurisdictional boundaries

What rights are we balancing?

Under Article 10 of the Human Rights Act 2001, “everyone has the right to freedom of expression”. This right includes the freedom to hold opinions, political or otherwise. This, however, is not a limitless or unconditional right. For those who are prepared to read on, Article 10 also states “the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”.

Under Article 10, the “formalities, conditions, restrictions or penalties” may be deemed necessary for the following:

• in the interest of national security, territorial integrity or public safety;
• the prevention of disorder or crime;
• the protection of health or morals;
• the protection of the reputation or rights of others;
• the prevention of disclosure of information received in confidence; or
• maintaining the authority and impartiality of the judiciary.

Such formalities, conditions, restrictions or penalties have been prescribed by law in our Equality Act 2017 which, amongst other things, seeks to protect individuals from harassment and discrimination both in and out of the workplace.

Employers therefore have the difficult task of balancing an employee’s Convention right to freedom of expression as against their colleague’s right not to be subjected to harassment per equality legislation.

Are your political views protected?

Claims under the Equality Act 2017 hinge on establishing a “protected characteristic” – these are specific qualities or traits that are afforded legal protection. There is no specific protection regarding political views, that is to say that political affiliation is not itself a protected characteristic.

We have seen through recent case law that there is an argument to be had for political views falling under the protected characteristic of religion or belief, namely the “philosophical belief” element of the characteristic’s definition. What was once a somewhat niche point appears to be becoming ever more poignant in today’s climate.

In the recent Manx case of Mincher v Manx Care, the Tribunal considered the definition of belief by reference to criteria set out in the UK case of Grainger, namely that:

• the belief must be genuinely held;
• it must be a belief and not an opinion or viewpoint based on the present state of information available;
• it must be a belief as to a weighty and substantial aspect of human life and behaviour;
• it must attain a certain level of cogency, seriousness, cohesion and importance; and
• it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

This criteria was also used by the UK Tribunal in the recent case of Dr David Miller v University of Bristol, which concerned a university professor expressing his beliefs about Zionism which was alleged to amount to harassment under equality legislation. The Tribunal commented that it is not for them to inquire into the validity of one’s belief but rather establish whether a belief or opinion amounts to a philosophical belief as defined by equality legislation.

Can you be dismissed for expressing your political views?

It is the starting position in unfair dismissal claims that an employee can only claim for unfair dismissal where they have been employed for a continuous period of at least one year. As with most areas of law however, there are exceptions to this position.

Section 132(5) of the Employment Act states that the one-year rule will not apply if it is shown that the reason, or principal reason, for the dismissal is, or is connected with the employee’s political affiliations or opinions.

This does not mean, however, that a dismissal due to political expression will be automatically unfair. The Tribunal would still be required to consider whether the dismissal was fair in all the circumstances and consider whether internal policy and procedure was followed.

When can expressing political views amount to harassment of a colleague?

Section 27 of the Equality Act 2017 defines harassment as unwanted conduct related to a relevant protected characteristic where the conduct has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

It is important to consider how an employee is expressing their political views, and whether this is creating a hostile work environment. Is the employee pushing their political views on others? Are they expressing their views in a way that targets or singles out a specific individual or group? Is the employee using their political views to intimidate or coerce others?

Remember, it is not necessary for an individual to possess a particular protected characteristic in order to make a claim for harassment!

What about employees who express their political views outside the workplace?

An employee’s political expression online may become a problem where it amounts to a breach of company policy. Whilst an individual is entitled to their views (and to express such views as discussed above), public posts that damage the reputation of their employer – particularly when the individual is identifiable as an employee of the company – may lead to disciplinary measures being taken.

Social media posts which target colleagues, promote intolerance or contribute to a hostile or divisive atmosphere may be construed as a form of workplace harassment. So, employees should exercise caution when posting content of a political nature which goes against the ethos and values of their employer. Equally, employers should exercise caution when determining if disciplinary action is the appropriate course of action in all the circumstances.

Ultimately, where an employee expresses their political views – whether that be in or out of the workplace – this will require careful balancing between an individual’s rights and an employer’s duty to maintain an inclusive and respectful workplace. While dismissals for expressing political opinions are not automatically deemed unfair, they should never be approached lightly. Clear policy and transparent communication are key to reducing the risk of unfair dismissal or Equality Act claims.

Advocate Lizzie Beard is part of M&P Legal’s employment team. This article does not constitute legal advice, specific advice should always be taken on the particular circumstances.

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