So, the general election is happening next week. Many people have very different views. Some people are keen to express their views; others would prefer to keep their politics private. There are even a few who would prefer not to hear any more about the whole thing! According to a survey by Reed recruitment, 60% of employees think it is fine to talk about politics at work. However, these discussions can create some tricky issues for employers. Article 10 of the Human Rights Act provides for the right to freedom of expression. However, discussing political views at work can create a lot of workplace animosity. Staff may feel, disgruntled, bullied or even harassed.
There are a lot of questions that may be troubling a few employers around the country. So, what are the legal implications of employees discussing politics at work? What can employers do to police this and should they be doing so?
Julia and Jasper are chatting loudly in the corner of an open plan office about the general election. Julia is Spanish and worried about her future in post-Brexit Britain. Jasper tells Julia that Brexit is a huge mistake caused by “stupid, racist people who do not understand the implications of their vote”.
Jasper then circulates a link to a page on the Liberal Democrats website requesting staff to add their name to the “Stop Brexit” campaign. The page calls Brexit a “national embarrassment” and “a disaster for the UK”. He follows up his email by casually asking colleagues in his vicinity who they are going to vote for.
Kelly, who voted to leave, feels very intimidated and degraded by Jasper. She complains to her manager that the office feels like a hostile and offensive place to work.
What are the risks for employers?
The immediate risk for the employer in this scenario is of an employment tribunal claim by Kelly. If the situation is not handled carefully, she could ultimately resign and look to bring a claim of constructive unfair dismissal (provided that she has sufficient qualifying service). She may also consider a claim of harassment, arguing that her political beliefs are a protected characteristic under the Equality Act 2010. Whether or not her political beliefs are protected, and her claim ultimately successful, would be a question for the employment tribunal to determine based on the circumstances. In particular the tribunal would consider whether the belief is genuinely held, and not simply an opinion, clear, logical and worthy of respect in a democratic society.
What about Jasper? If the employer decides to sanction Jasper, for example by issuing a written warning or dismissing under their disciplinary procedure, he may argue that no disciplinary offence has been committed and his fundamental right of freedom of expression has been infringed. It is possible that he could look to bring his own claim of discrimination or harassment in the circumstances, or even constructive or unfair dismissal.
On top of this, there is the general HR problem that, inter-employee relationships have been damaged. Productivity is likely to be affected and, if employees no longer like their workplace, they may simply look to find a job elsewhere, damaging workforce stability.
So, how should the employer handle this situation?
Ideally the employer will have a clear policy in place on expressing political views at work or will otherwise have made it clear to its workforce what is, and is not, regarded as acceptable. This may be in the form of a specific policy statement, or it may be contained in other policies. If the employer can point to an infringement of a rule or policy, it will be much easier, and fairer, to discipline Jasper. If not, they will have to rely on general acceptable standards of workplace behaviour. However, it will be open to Jasper to argue that he was not aware that he had doing anything wrong.
The first step for the employer is to investigate Kelly’s grievance. Kelly should be asked if she wishes to raise a formal complaint or is content to deal with the issue informally. In the case of the former, it will be necessary for the employer to deal with the issue in accordance with their grievance procedure, but either way the employer will need to consider what action is appropriate to take in the circumstances. If the employer’s position on the matter is very clear, they may consider it appropriate to discipline Jasper and issue a warning. If the behaviour continues, it may then be appropriate to dismiss. If they have not already made their position on political discussions at work clear, the employer may consider it is not appropriate to discipline initially, but rather have a discussion, explain the problem and the potential future ramifications if the behaviour continues. The employer should also ensure that its stance is clear and disseminated to the remainder of the workforce.
- Set the tone. Lay down clear guidelines as to the businesses stance on political chat at work, what is and is not acceptable in the workplace or in other forums connected with the employer.
- Train managers on acceptable standards so that they may disseminate this information to the rest of the workforce.
- Take complaints of staff seriously. Always ascertain if the wish to raise a formal grievance and deal with the complaints in accordance with procedures.
If you would like more information on the content of this article or employment law generally, please contact Melanie Rowe on 01872 227006 or by email at firstname.lastname@example.org