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Unfair Dismissal - Qualifying Period

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Does the exception to the two years’ qualifying period set out in s108(4) Employment Rights Act 1996, extend to cover a dismissal related to a political neutrality clause?

No, held the EAT in Scottish Federation of Housing Associations v Jones.

The Claimant worked as the Head of Membership and Policy. She had a political activity clause in her contract that didn’t prevent her being a member of a political party but did preclude her from undertaking a ‘formal role’. She requested permission from the Respondent to stand as a candidate for Scottish Labour in the 2019 General Election. This was refused and she withdrew her candidacy. In a subsequent meeting, the Claimant was dismissed. Various reasons for dismissal were cited, but the Respondent did not rely on her request for permission to stand in the election.

She brought claims for belief discrimination and unfair dismissal but did not have the requisite two years’ qualifying service for her unfair dismissal claim.  The tribunal found that the exception in s108(4) Employment Rights Act 1996 applied – you do not need two years’ service if the reason for the dismissal “is, or relates to, the employee's political opinions or affiliation”. The Claimant was entitled to pursue her claim for unfair dismissal, in which she alleged that the real reason for her dismissal was her request to stand in the election.

The EAT disagreed. The wording and purpose of s108(4) was clear, it related to dismissals for political opinions or affiliations. The Claimant accepted that she was not dismissed for her membership of Scottish Labour or for her political opinions. The EAT distinguished between political opinions or affiliations and a breach of a political neutrality policy.

However, on a separate point of appeal, the EAT agreed with the tribunal that the Claimant’s belief in participatory democracy was a protected belief under s10 Equality Act 2010 and satisfied the Grainger criteria.