“Participation in the democratic process” a protected belief? Scottish Federation of Housing Associations v Jones

In Scottish Federation of Housing Associations v Jones [2022] EAT 114, Ms Jones was Head of Membership and Policy of the Federation. Her terms and conditions of employment included a clause headed “Political Activity”: it did not prevent her from belonging to a political party but did prevent her from having a “formal role” of a political nature. It was agreed that candidature at a General Election would have constituted a “formal role” [4].

In October 2019, she told her employers that she wished to stand for the Scottish Labour Party in Argyll and Bute at the next General Election. The Federation’s board told her that it did not consent to her doing so and she withdrew her candidature. In November, she was dismissed [5]. Though the Federation did not cite her active membership of Scottish Labour as a reason for her dismissal [6] and she accepted that she had not been dismissed because of that [7], she believed that the true reason had been her request for permission to stand as a Labour candidate at the General Election [6].

She claimed that she held a protected philosophical belief under the Equality Act 2010: that “those with the relevant skills, ability and passion should participate in the democratic process”. If, therefore, the Federation had dismissed her because she wished to “participate in the democratic process” and that belief was a protected characteristic, she would be entitled to bring a claim of discrimination under section 10 of the Act [15]. The Employment Judge had accepted that this was a protected belief under the Act [16].

In Grainger plc v Nicholson [2010] IRLR 4, Burton J had set out the constituent elements of a “protected belief” under section 10 at [24]: the belief must be honestly held, it must be a belief as distinct from an opinion or viewpoint based on the present state of information available, 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 and must be worthy of respect in a democratic society [17]. The Federation argued that the Employment Judge had been wrong in her assessment of the cogency and cohesion of Ms Jones’s belief [17] and that “her credo was no more than an expression of her personal choices” [18].

Lord Summers disagreed:

“A belief in participatory democracy is a belief that relates to a crucial aspect of the form of government exercised in the UK. The desirability of securing participation at all levels in a Parliamentary democracy is obviously a matter of great moment. Without adequate engagement by the electorate and by extension candidates from among the electorate, democracy as a mode of government would lose its efficacy and legitimacy. It is easy to accept therefore that the Claimant’s belief was a serious one in the sense that it dealt with a serious issue and important on that account. The [Employment Judge’s] reference to the Claimant’s decision to stand for Parliament demonstrates that she took her belief seriously and was demonstrative of the genuineness of her beliefs” [20].

He was, therefore, “inclined to accept that the Respondent is entitled to submit that the EJ had erred by failing to apply part of the Grainger test or that in purporting to apply it, she had misunderstood what it required” but rejected that ground of appeal [24].

Counsel for Ms Jones had accepted that political neutrality clauses were lawful in principle but did not concede that a political neutrality clause was appropriate in this case, and drew attention to s. 203(1) Employment Relations Act 1996, which voids any term of employment inconsistent with the rights conferred by the Act [26].

Lord Summers held that where the putative unfair dismissal was because Ms Jones had asked for permission from her employer to stand as a candidate in a General Election and where she had expressly accepted that her employer’s refusal was unconnected to her political opinions or membership of the Scottish Labour party and where her terms of contract contained a political neutrality clause, subsection 108(4) of the Employment Relations Act 1996 did not apply and because she had been dismissed prior to completing two years of employment, her claim was therefore excluded by the terms of the Act. However:

“It remains … to note that this appeal does not address the question of whether an employee whose belief is otherwise cogent and cohesive is entitled to the protection of the [Equality Act 2010] where it might be submitted that there is a compelling qualification relevant to her belief. The Respondent did not explore the implications of the neutrality clause for the Claimant’s own expression of belief in participatory democracy and no attempt was made to argue that a belief that made no allowances for political neutrality in appropriate cases was not a cogent and cohesive belief” [27].

The appeal was allowed in part. The claim was to proceed to a full hearing at which the question of the unfairness or otherwise of the dismissal could be decided [28].

Cite this article as: Frank Cranmer, "“Participation in the democratic process” a protected belief? Scottish Federation of Housing Associations v Jones" in Law & Religion UK, 9 August 2022, https://lawandreligionuk.com/2022/08/09/participation-in-the-democratic-process-a-protected-belief-scottish-federation-of-housing-associations-v-jones/

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