Scottish Federation of Housing Associations v Polly Jones

The Employment Appeal Tribunal considered whether section 108(4) of the Employment Rights Act 1996 (ERA) permits an employee to bring an unfair dismissal claim within the first two years of employment where the dismissal "relates to" political opinions or affiliation, and whether the claimant's asserted belief in participatory democracy amounted to a protected philosophical belief under section 10 of the Equality Act 2010 (EA).

The Tribunal held that s.108(4) is directed at dismissals based on the content of a person’s political opinions or the identity of their political affiliation (as in Redfearn), not dismissals grounded in an employee’s failure or refusal to maintain political neutrality required by the employer’s role. Because the claimant was dismissed after less than two years and the dismissal was connected to her seeking to take a formal political role in contravention of a political neutrality clause rather than to the content of her political opinions or party membership, s.108(4) did not apply.

The Tribunal also upheld the Employment Judge’s finding that the claimant held a protected philosophical belief under EA s.10 — namely that those with relevant skills, ability and passion should participate in the democratic process — applying the Grainger criteria (honestly held; more than mere opinion; weighty/important aspect of human life; cogency, seriousness, cohesion and importance; worthy of respect in a democratic society).

Background and facts:

• The claimant commenced employment on 29 April 2019 as Head of Membership and Policy. Her contract contained a clause headed "Political Activity" which permitted party membership but precluded a formal political role.
• On 4 October 2019 she notified her employer that she wished to stand as the Scottish Labour candidate for Argyll and Bute in the next General Election. The employer refused consent on 11 October 2019 and the claimant withdrew her candidature. She was dismissed on 14 November 2019. The dismissal letter gave a variety of reasons; the claimant contended the true reason was that she sought permission to stand. She accepted in correspondence before the Preliminary Hearing that she was not dismissed because of party membership or her political opinions.

Nature of the application and procedural posture:

• This was an appeal to the Employment Appeal Tribunal from an Employment Tribunal (preliminary hearing) determination. The Employment Judge had held that ss.108(4) ERA applied and that the claimant’s claim could proceed despite not meeting the two-year qualifying period. The EAT heard arguments on (i) whether s.108(4) applied and (ii) whether the claimant’s asserted belief was protected under EA s.10. A third issue (legal professional privilege) was not appealed.

Issues framed by the court:

1. Does s.108(4) ERA permit an unfair dismissal claim where dismissal "relates to" political opinions or affiliation in circumstances where the employee has not completed two years’ service?
2. Did the claimant hold a protected philosophical belief under EA s.10?

Court’s reasoning and conclusions:

• On s.108(4) ERA the EAT examined the statutory purpose, noting the amendment to the ERA following Redfearn and concluded the subsection was aimed at dismissals arising from the content of political opinions or the identity of political affiliation. The Tribunal distinguished those cases from dismissals grounded in the employer’s requirement of political neutrality. A literal expansion to capture any dismissal that incidentally related to political affiliation would go beyond the subsection’s purpose. Accordingly s.108(4) did not apply to this claimant.
• On EA s.10 the Tribunal applied the Grainger test. Having reviewed the Employment Tribunal’s factual findings about the claimant’s long-standing engagement with political activity and the sincere commitment she demonstrated by seeking to stand for election, the EAT concluded the belief was honestly held, concerned a weighty aspect of human life, and satisfied the cogency, cohesion and seriousness requirements. The Tribunal therefore upheld the Employment Judge’s conclusion that the belief was protected.
• The EAT noted unresolved issues about how a political neutrality clause might interact with a protected belief and observed that proportionality and qualification issues had not been explored at the preliminary stage. The matter was remitted to a full hearing to determine the substantive unfair dismissal and discrimination issues.

Relief sought: The claimant sought to proceed with an unfair dismissal claim despite not having two years’ continuous service.

Appeal allowed in part and refused in part. The EAT held that s.108(4) ERA does not cover dismissals attributable to an employee’s failure or unwillingness to comply with an employer’s political neutrality requirement; the subsection protects dismissals based on the content of political opinions or the identity of political affiliation. Accordingly s.108(4) did not apply to exclude the qualifying period argument. Separately, the EAT upheld the Employment Judge’s finding that the claimant’s belief in participatory democracy met the Grainger criteria and was a protected philosophical belief under EA s.10. The substantive matters were remitted to a full hearing.

Appeal from an Employment Tribunal preliminary hearing decision (Employment Tribunal decision not given a neutral citation in the judgment) to the Employment Appeal Tribunal. Determination given at [2022] EAT 114.