Peninsula’s Chief Operations Officer and Employment Law Director, Alan Price discusses how employers can balance their duties under unfair dismissal legislation against the need  to protect both other employees and the company’s reputation

Last week, West Ham Football Club youth coach, Mark Phillips, was suspended after it emerged that he attended a march organised by the Democratic Football Lads Alliance (DFLA).  The DFLA, who have been accused of islamophobia and racism by critics of the group, marched through central London to protest against immigration, terrorism and crime related issues.

Political discrimination – the issues for employers

Peninsula’s Chief Operations Officer and Employment Law Director, Alan Price, explains some of the issues this raises for employers:

“Political views have become a greater workplace concern in recent years, especially in the months following the Brexit vote and the ongoing negotiations.

“The recent investigation by West Ham Football Club into the attendance of a youth coach at a march organised by the group denounced by anti-racism campaigners, the Democratic Football Lads Alliance, has again focused the spotlight on this issue.

Protection from Discrimination

“Under the Equality Act 2010, employees are protected against discrimination on the grounds of their religion or belief.

“Employees can make an unfair dismissal claim from day one of their employment if they are dismissed because of their political opinion or affiliation.  Whilst this dismissal won’t be automatically unfair, employers will have to show they had a fair reason for dismissal, a fair procedure was followed and the dismissal was reasonable in all the circumstances.

The need for an investigation and the right to appeal

“Currently, West Ham have suspended the youth coach to allow an investigation into the matter. An investigation is a key part of a fair dismissal procedure to allow all necessary information to be gathered, before undertaking a disciplinary hearing to discuss the allegation and the evidence collected.

“The employee should also be provided with the opportunity to appeal any sanction applied.

‘Some other substantial reason’

“Generally, employers will rely on a ‘some other substantial reason’ dismissal where they can prove the employee’s political opinion, affiliation or membership has had a detrimental impact on the employer’s reputation. However, employers can’t just claim this impact.

“They will have to provide evidence of the impact, for example, by showing a reduction in sales due to the public boycotting the business.

“Alternatively, there may be a conduct issue if the employee is expressing their political beliefs in a way which is against company rules or which causes a negative impact on colleagues or staff, such as making them feel intimidated.

“Businesses may also have a policy setting out limitations on carrying out political activity at work or social media use which, if breached, can lead to formal action.  Such a dismissal would be because of the way the individual is conducting themselves at work, and not because of their political opinion.

Political belief must be ‘worthy of respect’ in a democratic society

“Previous cases have shown that an employee may receive discrimination protection if they can prove their political or philosophical belief was the reason for their disciplinary sanction or dismissal.

“There is a requirement, however, that the belief is ‘worthy of respect in a democratic society’ which may disregard beliefs based on areas such as racism.

“To avoid the discrimination risk, it will be for the employer to prove that the reason for the sanction was not the political belief but either due to the way the employee is expressing their belief or the negative impact this has on the employer’s business.”