With the general election now over, employers may take the view that politics should not be brought into the workplace.
But how easy is it to stop employees expressing their political views, and to discipline or even dismiss those who refuse to comply?
Expressing views in the workplace
The UK does, of course, have the Employment Equality (Religion or Belief) Regulations 2003. However, these regulations clearly state that ‘religion or belief’ means any religion, religious belief, or similar philosophical belief. Surprisingly, DTI guidelines specifically state that political views are not protected by the regulations. Political views do not amount to anything as philosophical as a religious belief, at least according to the DTI.
However, everyone has the right to freedom of expression. This stems from the European Convention on Human Rights and is now found in Article 10 of the annex to the Human Rights Act 1998 (HRA). The right is stated to include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This must be the starting point for all employers. While it sounds very grand, it is not an absolute right.
As employers will be aware, the position differs slightly in relation to the enforcement of the rights in the HRA, depending on whether an employer can be described as a ‘public’ employer. It is important to note that the rights enshrined in the HRA could be indirectly enforceable against private employers in the context of employment tribunal proceedings, so employers should be aware of their employees’ rights.
Of course, as with many convention rights, this freedom is qualified, and is subject to “such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”. Any interference must therefore have its basis in law and be in pursuance of one of the legitimate aims set out in Article 10, which include national security, prevention of disorder or crime, and the protection of the reputation or rights of others.
Finally, and very importantly, the interference must be ‘proportionate’ to the aim; in other words, the means must not be excessive to achieve the desired end. This test should be taken into account when considering disciplinary action.
An important case in relation to the right to hold and manifest political views is the case of Vogt v Germany (1996) 21 EHRR 205. In that case, a teacher succeeded in her unfair dismissal claim after she was dismissed because of her association with the Communist Party.
Her employer had tried to argue that this association broke the relationship of trust and confidence, but this argument failed, despite arguments from the employer that the German constitution was in the unusual position of specifically guarding against all forms of extremism in politics.
Employers should be aware that, if employees are expressing political views (even extreme ones), it is unlikely to be unfair to dismiss them.
Other employees have the right to enjoy their rights and freedoms without discrimination (Article 14) and, as explained above, freedom of expression is also subject to restrictions prescribed by law and necessary in a democratic society, including those to protect the rights of others.
This means that employers may discipline, and if necessary dismiss, employees whose expression of political views actually amount to discrimination against other employees.
The law (at national and European level) clearly provides for employees to be protected against a number of types of discrimination and employers must not neglect their duty to protect employees from discrimination in the workplace.
Therefore, if employers can fit an employee’s conduct into this definition, they will have the power to discipline in the usual way, always taking into account the proportionality test described above.
So, your employee has the right to express political opinions, but what if they are taking things much further than simply expressing political views, and are spending time actively canvassing other employees in the workplace?
This type of activity may be controlled by reminding employees of their obligation to devote their working hours to work and to obey the lawful instructions of their employer during that time.
If employees are carrying out political activities during working time, employers should remind them of these obligations. It would, however, be doubtful whether they could be prevented from canvassing during breaks.
Equally, if canvassing is taking place outside of the workplace, there is very little the employer can do. Disciplinary proceedings would of course be appropriate if an employee was taking time off unlawfully to engage in political activities, as there is no requirement to give leave for this sort of activity, and employees should be taking it as holiday.
What may make a difference, is if the employee’s activity outside the workplace amounts to criminal activity. This is very topical, as the British National Party founder, John Tyndall, was recently charged with offences of using words or behaviour intended or likely to stir up racial hatred, after he was secretly filmed by the BBC giving racist speeches across Britain.
However, even if an employee is charged with an offence, the employer will need to carry out their own investigation to ascertain whether there has been any breach of the employer’s rules. This may not be the case, unless it can be shown that the employee has breached the rights of others at work or brought the employer into disrepute.
Employers must be careful to take decisions based only on the information available, not on assumptions of guilt. In such a situation, it may be better to wait until the outcome of criminal proceedings is known before making a decision.
Protesting or demonstrating
Employers may cringe at the sight of an employee appearing on the television participating in a political demonstration or protest, but is there anything they can do to restrain or punish such employees?
Again, the starting point must be the individual’s freedom of expression and consequent right to express opinions lawfully. Individuals in the UK are accorded the right to protest. An employee who simply participates in such a demonstration or protest is merely exercising their rights under the convention.
There may be a way around this if the employee can be shown to have brought the employer into disrepute. If violence or allegations of a criminal offence are involved, it may be appropriate to discipline them, particularly if the connection between the employee and the employer is obvious.
This will strengthen the argument in favour of disciplinary action on the basis that the employee has brought the employer into disrepute.
There may also be an opportunity to control employees where an employee publicly expresses views that conflict with the policy or ethos of a company. An example of this was the case of an atomic weapons worker employed at Aldermaston, who was disciplined when he criticised atomic weapons on the television.
In such a case, where there is a clear link between the employer’s policy and the employee’s politics, it is very likely that the employer will be able to successfully argue that it is being brought into disrepute. Companies may benefit from the fact that the right to freedom of expression may be qualified by the need to protect the reputations of others, which will include the reputation of companies.
Clearly, the right of an employee to express political opinions is a strong one, rooted in convention history. Employers will need to think carefully about whether an employee is breaching the rights of others, particularly in relation to discrimination, or whether the reputation of the employer is at stake, before proceeding to discipline employees in relation to political views.
Even then, the concept of ‘proportionately’ must be kept in mind. Employers must be careful, even in the private sector, to ensure employees are not disciplined because of political beliefs or their expression of them, but because that expression is actually unlawfully infringing the rights of others whom the employer has a duty or a right to protect.
Sophie Whitbread is an assistant solicitor in Charles Russell’s employment and pensions service group