With question marks over politicians’ abilities to manage reasonable debate in the House of Commons and a prime minister under fire for deliberately provocative language, it is inevitable that workplace chatter will turn to politics. But when does healthy workplace debate turn into a potential discrimination claim?
It makes good business sense for organisations to remain apolitical, but it is unrealistic to expect employees to do the same. Employers therefore have a duty to foster a workplace free of bullying, harassment or discrimination.
A starting point for employers worried about political debate in the workplace is to remind staff of their personal responsibilities to each other. More and more businesses now have dignity or respect at work policies, which outline what is and isn’t accepted workplace behaviour. Such policies aren’t intended to stifle debate but seek to encourage employees to treat others with respect and dignity, discouraging any form of discrimination and harassment in the workplace.
Unfortunately for employers, this is an area where the law is being tested. More and more frequently we are seeing cases that question whether an employee’s views constitute a ‘philosophical belief’ under the Equality Act 2010.
In Grainger plc and others v Nicholson, the Employment Appeal Tribunal clarified the test as to what amounts to a ‘philosophical belief’ for the purposes of the Equality Act. Mr Nicholson was made redundant and subsequently brought claims for unfair dismissal as well as religion and belief discrimination against his former employer, Grainger. He argued that his belief about climate change was not simply an opinion, but constituted a philosophical belief under the relevant legislation (then the Employment Equality (Religion or Belief) Regulations 2003, now the Equality Act).
Grainger argued that the tribunal had not properly applied the law, but the company’s appeal was dismissed. The case went on to clarify the legal test for a philosophical belief; namely, for something to be considered a philosophical belief under the Equality Act, it must:
- be genuinely held;
- be a belief and not an opinion or viewpoint based on the present state of information available;
- be a belief as to a weighty and substantial aspect of human life and behaviour;
- attain a certain level of cogency, seriousness, cohesion and importance; and
- be worthy of respect in a democratic society and not incompatible with human dignity or in conflict with the fundamental rights of others.
More recently, a preliminary employment tribunal hearing ruled that an employee’s belief in Scottish independence was protected under the Equality Act. Scottish National Party councillor Chris McEleny brought a case against his former employer, the Ministry of Defence, which he said treated him unfairly after he announced he was running for the post of deputy leader of the party in 2016.
A judge agreed that McEleny’s support for independence qualified as a philosophical belief and the case will now proceed to a full hearing. Employers will be watching the decision keenly. In the meantime, it is clear that any suggestion of less favourable treatment by an employer because of their political views will be open to challenge.
Of course, chatter among employees about current affairs is to be expected and will, in the main, not cause alarm. It is only when such chatter causes offence or leads to an individual feeling harassed that employers may find themselves in the firing line.
In my experience, in this year alone, there has been a significant increase in disputes arising following political discussions at work. One such example involved colleagues with opposing views on Brexit. The conversation became heated and descended into remarks about too many ‘foreigners’ in the country. Offensive language was used, which was perceived by some to have racist undertones.
Interestingly, the colleagues who complained of feeling harassed and offended were white and English. Under the Equality Act, they would be entitled to bring a claim, as discrimination does not have to be on grounds of the complainant’s race.
In the meantime, employers must take a risk-averse approach to this emerging area of law. Employers should always show that they have taken reasonable steps to prevent such a claim under the Equality Act. One such way may be to run a workshop on the personal responsibilities of each employee and have them sign a declaration that they have undertaken and understood their responsibilities.
Homa Wilson is an employment law partner Hodge Jones & Allen