REWARD
raise an unfair dismissal claim to an ET. However, as with many aspects of employment legislation, there are some limited exemptions to this rule. Under Section 108(4) of the Employment Rights Act 1996, employees can raise a claim for unfair dismissal, even if they don’t have two years’ service if the dismissal relates to their political opinions or affiliations. A recent judgment of the case Scottish Federation of Housing Associations (SFHA) v Jones assessed the applications of this legislation. The respondent, SFHA, had dealings with the Scottish government and other political parties. For this reason, it was reasonable for them to include a political neutrality clause within their employees’ contractual terms and conditions. This meant they couldn’t have any allegiance or affiliation to any specific political party. However, an employee was a strong supporter of the Labour party and approached their employer for permission to stand as a Labour candidate in the 2019 general election. The employer refused and she withdrew her candidature. At a later meeting, she was dismissed for undisclosed reasons. But the employee raised an unfair dismissal claim under Section 108(4), despite not having two years’ service, saying that her affiliation with, and support for, the Labour party played a part in her dismissal. The ET initially upheld her claim, saying the employee’s political opinions and affiliations were the reason for her dismissal, making it unfair. It further allowed the claim to proceed without her having two years’ service due to the exemption provided within clause Section 108(4). However, following an appeal to the EAT, this was overturned. The EAT confirmed that Section 108(4) didn’t The judgment provides some reassurance to employers that a case will only be determined based on the information known at the time of dismissal
time of her dismissal, she met the required tests to be classed as disabled. In doing so, the ET assessed: ● whether she had a physical and / or mental impairment ● that, if so, the impairment had a substantial impact on her ability to carry out day-to-day activities; and ● if the effect of this was long-term. When understanding whether a medical condition is ‘long-term’, employment tribunals will generally expect that it has lasted for, or is expected to last for, at least 12 months. However, there are some exceptions to this rule to allow for certain conditions to be automatically considered a disability, for example, cancer and multiple sclerosis. In these situations, an employee is deemed to have a disability from the point of diagnosis. In making its decision, the ET recognised that Covid would have had an adverse effect on her ability to carry out normal daily activities. But also found that, since she’d only had Covid for two and a half weeks at the point of dismissal, and no suggestion of long-Covid had been raised, it couldn’t be considered as long- term, so didn’t meet the necessary tests to qualify as a disability. As a result, the claim was dismissed. The judgment provides some reassurance to employers that a case will only be determined based on the information known at the time of dismissal. There remains an argument that, if an employer were to have reasonable knowledge of an employee’s health condition, that they must still take steps to support it. For example, had a medical professional already diagnosed long-Covid, separate tribunal cases show that this may amount to a disability, for which an employee would be protected against discrimination. With reports of long-Covid diagnosis increasing, employers should be cautious if an employee is suffering from ongoing Covid-related symptoms. They should remember that a full and fair procedure must always be followed when a dismissal is necessary. Special protection against dismissals relating to political opinions or affiliations In most cases, an employee must have worked for at least two continuous years with the same employer to be able to
apply. Instead, the EAT concluded that, while the employee’s request to stand as a Labour candidate in the general election was the primary reason for her dismissal, this doesn’t necessarily mean that the dismissal was due to her political opinions or affiliations. Rather, it decided that her request meant she couldn’t remain politically neutral (as was required in her employment contract), which ultimately caused her dismissal. The EAT highlighted that a requirement to remain politically neutral doesn’t fall within the special protections relating to political affiliations or opinions under Section 108(4). Therefore, the employee (with less than two years’ service) had no basis to succeed in an ordinary unfair dismissal claim, nor to bring a claim under Section 108(4). The case helps employers better understand the risks associated with dismissing an employee for reasons relating to their political opinions and affiliations. But it also strengthens the use of political neutrality clauses within contracts, and the actions which are permissible should an employee breach them. The case helps employers better understand the risks associated with dismissing an employee for reasons relating to their political opinions and affiliations It’s worth highlighting that a separate claim for philosophical belief discrimination was raised at the same time, which could be successful. The employee’s belief in this case was that persons should stand for office if democracy is to thrive (participatory democracy) or, in other words, a belief in active political participation. The EAT confirmed that this meets the necessary tests to be classified as a philosophical belief under the Equality Act 2010 and remitted this part of the claim back to the ET to determine whether she was discriminated against due to holding her protected belief. n
45
| Professional in Payroll, Pensions and Reward |
Issue 86 | December 2022 – January 2023
Made with FlippingBook - Online magazine maker