Scottish Federation of Housing Associations v Polly Jones

Section 108(4) of the Employment Rights Act 1996 removes the qualifying-period requirement only where dismissal is because of, or sufficiently relates to, the employee’s political opinions or political affiliation. Its purpose is to protect against dismissal arising from the content of political opinions or the identity of the affiliated party. It does not extend to dismissal for failing or refusing to maintain political neutrality where neither the opinions nor the party identity formed part of the employer’s reasoning.

A belief in participatory democracy, including that suitably motivated and able people should stand for public office, can satisfy the cogency and cohesion requirements for a protected philosophical belief. A concise formulation does not alone establish those qualities, but a belief may be cogent where it is rationally connected to a serious political imperative and coherent within the believer’s wider belief system.

The claimant had worked for the appellant housing-association body for less than two years. Her contract required political neutrality and prohibited a formal political role. She asked permission to stand as the Scottish Labour candidate at the 2019 General Election. The appellant refused permission and later dismissed her.

At a preliminary hearing, the Employment Judge held that the claimant could pursue an unfair-dismissal claim under section 108(4) of the Employment Rights Act 1996, notwithstanding her short service. The Employment Judge also held that her belief in participation in the democratic process was protected under section 10 of the Equality Act 2010.

The Employment Appeal Tribunal considered whether the dismissal fell within section 108(4), and whether the Employment Judge had erred in applying the Grainger criteria to the asserted philosophical belief.

1. Appeal allowed in part and otherwise dismissed. The claimant’s unfair-dismissal claim was excluded by the two-year qualifying period. Her discrimination claim, founded on a protected philosophical belief, could proceed to a full hearing.

2. Section 108(4) of the Employment Rights Act 1996 must be read purposively. It protects employees dismissed because of their political opinions or affiliation, including where those opinions or affiliation cause the employer operational difficulties. The words “relates to” do not extend the exception to every dismissal in which politics has a causal or indirect role.

3. The claimant had accepted that neither her political opinions nor her Scottish Labour membership caused her dismissal. If she was dismissed for seeking candidacy, the relevant concern was her failure or unwillingness to remain politically neutral under her contractual terms. Political neutrality is distinct from the mischief addressed by section 108(4). The connection between the dismissal and her opinions or affiliation was therefore insufficiently proximate. The Employment Judge erred in holding otherwise.

4. The Employment Judge was nevertheless entitled to find that the claimant’s belief in participatory democracy satisfied the Grainger requirements. The Tribunal accepted that brevity of expression was not itself proof of cogency or cohesion. However, the belief addressed a serious and important aspect of democratic government, was genuinely held, rationally supported, and coherent with the claimant’s wider beliefs and activities. The challenge was not advanced as a perversity appeal, and no error of law was shown.

5. The effect of a political-neutrality clause on any later discrimination claim, including proportionality, was not determined. It remained for the full hearing if relevant.

• Employment Appeal Tribunal: allowed the appeal against the preliminary ruling on section 108(4) of the Employment Rights Act 1996, but dismissed the appeal against the finding of a protected belief under section 10 of the Equality Act 2010.
• Employment Tribunal: at a preliminary hearing, held that section 108(4) applied and that the claimant’s asserted belief was protected. No citation was stated.