With the upcoming election tomorrow, are your employees having political debates at work? Do they have a right to express their political opinion in the workplace? And, do they have a right to leave work to vote?
Political conversations at work
It is possible for an employer to completely ban all conversation about politics at the workplace and work-related events (including the Christmas party!). Google has recently done so, issuing a set of internal rules designed to discourage employees from engaging in political debate.
They state that political debate can be disruptive, outlining that “while sharing information and ideas with colleagues helps build community… disrupting the workday to have a raging debate over politics or the latest news story does not”.
Afterall, everyone is entitled to their opinion in politics, but some may be more forceful than others, and that force could be (at least) annoying and (at worst) harassment and can make people feel uncomfortable at work, especially if they are in a minority.
Rights to political speech?
But what if someone insists on sharing their political opinions with fellow employees? Unfortunately, the law in this area is quite unclear. The Equality Act 2010 makes no express reference to political discrimination, only “religion or belief”.
Belief thereafter extends to philosophical belief (which, as we explained in our previous blog, does not extend to vegetarianism *LINK BLOG that we have already done **) but the statute does not expressly state that political belief is a philosophical belief.
The precedent from the Employment Appeal Tribunal is that, in order to be protected by the Equality Act:
- The belief must be genuinely held.
- It must be a belief, not an opinion or viewpoint.
- 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.
- It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
- It must “have a similar status or cogency to a religious belief”.
- It need not be shared by others.
Case law has found that a belief in left-wing democratic socialism could be a protected belief for the purposes of the Equality Act. Therefore it may be possible, although it remains up for debate, that someone may be able to claim discrimination or harassment, on the basis of their political beliefs.
However, the European Court of Human Rights has indicated that employees should have extra protection against dismissal due to their political beliefs. In a 2012 case, a bus driver was a member of the British Nationalist Party, and he was dismissed by reason that he could present a risk to the health and safety of his co-workers and passengers and jeopardise the reputation of his employer due to his membership of this party.
The ECtHR found that the UK was in breach of employees Article 11 rights (freedom of association). They didn’t find that the employee was either discriminated against or unfairly dismissed, but merely that he should have had some protection which gave him the opportunity to argue his rights in front of the Employment Tribunal. However, such protection has not been introduced since this decision in 2012. The position remains frustratingly unclear.
Outside of the workplace
Employees do have a right to free speech so, outside of the workplace, they may be able to share their political opinions or campaign. A dismissal because of such activities outside of work may not be appropriate (although, as we have already discussed above, whether employees have any protection against this is unclear), unless such opinions were grossly inappropriate or offensive.
Of course, on social media accounts associated with an employer, a social media policy can make it clear that political posts may amount to misconduct, as it may not be appropriate for an employer to be associated with any political party or position. This should be communicated clearly to employees.
Employees are not provided with any rights to either vote not do they have any rights to leave work to volunteer for any political parties on election day (nor any other day). However, you might want to consider supporting your employees by perhaps allowing them a longer lunch break or giving allowing them to leave slightly earlier (or arrive later) to get their vote in.
Something else to consider is that parents may have more childcare responsibilities than they would have on an average Thursday, as schools may be closed to be made into polling stations. If that is the case, and if your business model can support this, you might want to consider permitting employees to work from home or condensed hours.
The position remains unclear as to how protected employees’ political opinions are. In the current climate, with society perhaps more polarised then it has been in recent years, we fully expect that a case may come through the Tribunals in the next few years, which would hopefully provide more clarity on this point.
If you require any assistance with your employees and human resources, we offer HR packages and we can assist employers with any such issues as they may arise. Please do not hesitate to get in touch.
Written by Alicia Collinson.