April 18, 2017

Another Year, Another Vote – Do you Offer Guidance to your Employees at Election Time?

Many employers had hoped the referendum to leave the EU in June 2016 was the last major political decision its employees would be taking for a while as the country settles down to Brexit.

And then Theresa May steps up to announce a snap general election to take place less than a year later (just).

So much for settling down.

It can be tempting for businesses to offer some guidance for their employees, and often employees look to their leaders for guidance on the business impact of the options available at election time.

And, as we saw with the referendum to leave the EU, it is equally tempting for businesses to go public with their political leanings. In 2016 we saw JCB and JD Wetherspoon come out in favour of Brexit, with Ford and Rolls Royce volubly in the Remain camp.

In the United States, one company went even further.

Following the election of Donald Trump as President, the Chief Executive Officer and co-founder of Grubhub (a food ordering business in the US similar to Just Eat) sent an email to his employees suggesting that any employee who agreed with Donald Trump’s “nationalist, anti-immigrant and hateful politics” had no place at the company.

The post-election email stated:

I want to affirm to anyone in our team that is scared or feels personally exposed, that I and everyone here at Grubhub will fight for your dignity and your right to make a better life for yourself and your family here in the United States. If you do not agree with this statement then please reply to this email with your resignation because you have no place here. We do not tolerate hateful attitudes on our team.

Strong stuff.

Here’s the letter in full:

Where do businesses stand on policies based on political opinion?

Whilst businesses are understandably keen to protect their interests, many of which can be affected by a political decision, employers in the UK tempted to offer their employees the dole queue if they do not share their political affiliations should think twice.

Following the case of Redfearn v United Kingdom an employee may be able to argue they have been unfairly dismissed if the reason or principal reason for their dismissal is, or was, related to their political opinions or affiliation.

Heard at the European Court of Human Rights, Mr Redfearn was dismissed on the basis that he had stood as a councillor for the British National Party (BNP) and could not perform his customer-facing role, as the majority of his customers were of Asian origin (Mr Redfearn, himself disabled, was a bus driver for disabled people in the Bradford area).

Mr Redfearn did not have the two-year period of service required to bring a claim for unfair dismissal, and therefore argued that his less favourable treatment as a result of membership of a political party (i.e. the dismissal) was an interference with his rights under Article 11 of the European Convention on Human Rights of freedom of association.

The Court upheld Mr Redfearn’s claims and decided the UK was in breach by not providing any protection against dismissal on grounds of political opinion or affiliation. As a result, from 25 June 2013 no minimum period of service is required to bring a claim for unfair dismissal on the basis of political opinion or affiliation.

Whilst this case doesn’t create a new strain of Unfair Dismissal, employment tribunals are likely to find a dismissal unfair if Article 11 is infringed, as tribunals are themselves bound to interpret unfair dismissal laws in a manner compatible with the European Convention on Human Rights.

Given this, employers are best advised to refrain from seeking to influence their employee’s political leanings, even where they think their employees are turkeys voting for Christmas.

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About the author

Nicholas Stott

Having initially studied International Development and Politics at Leeds University, Nick converted to Law, graduating from the College of Law London in 2008. Nick trained as a solicitor at a law firm based in London’s West End, before qualifying as an Employment Solicitor in 2010. Since then, Nick has advised businesses and individuals on all aspects of employment law and has particular experience advising businesses from the healthcare, IT and restaurant industries. Nick also has extensive experience undertaking Employment Tribunal litigation.