Following the far-right and anti-fascist protests in the US this week, Angharad Aspinall, employment lawyer at Cardiff and London based law firm, Capital Law, comments for Lawyer Monthly.
Over the weekend, many will have seen the news of violent clashes in the US in which far right and anti-fascist marches ended in one death and several more demonstrators being injured. Tweeting after the demonstrations on Saturday, a Twitter account, Yes You’re Racist, began ‘outing’ ‘Alt right’ demonstrators. This has resulted in at least one man being dismissed from his job after appearing on the Twitter feed and the employer going as far to post comments surrounding the termination of the individual’s employment.
But what if a similar situation were to happen here in the UK and how would this sit with UK employment law? Would an employer be able to dismiss an employee for their attendance at such a demonstration? There are two considerations here. Firstly, whether dismissal would be fair and secondly whether the dismissal would be discriminatory based on the employee’s beliefs.
If the employee qualifies to being a claim for unfair dismissal, dismissal must be for one of the five fair reasons. These are capability, conduct, redundancy, illegality and some other substantial reason or SOSR. Such a situation could fall within one of two categories; conduct or SOSR. With regard to conduct, an employer can dismiss for conduct outside of work where the conduct in question pertains to the employment relationship. However simply taking part in such a demonstration would not in itself allow the employer to dismiss for misconduct; the employer would need to consider whether attending such a demonstration is at odds with how the employee is expected to carry out their job.
In such situations, the employer would more often than not consider dismissal for SOSR. In demonstrating this, the employer could rely on reputational risk. To demonstrate that dismissal falls within this reason the employer would need to provide evidence of such a risk e.g. whether customers/ clients/ service users have discovered the employee took part in the demonstration and no longer wish to deal with the employer or that publicity would have a detrimental impact on an employer’s business. It is therefore important for employers to analyse the situation in the round rather than automatically move to dismissal without any evidence of the consequences of the employee’s attendance at such an event.
Employers also need to consider the impact of discrimination legislation and particularly whether the employee’s right to express any religious or philosophical beliefs has been infringed. An employee would need to demonstrate that their views met the definition of a religious or philosophical belief. This definition has been developed through case law into a multi-point test which states that the “belief” must be more than a mere viewpoint or opinion; it must attain a certain level of cogency, seriousness, cohesion and importance and it must be worthy of respect in a democratic society and not be incompatible with human dignity and/or conflict with the fundamental rights of others. It would be for the employee to demonstrate that their “belief” meet this definition. The general consensus is that beliefs in Neo-Nazi or fascism would not meet this definition but in the situation above, it would still depend upon whether the employee’s actual personal “belief” resembled those types of groups.
If the employee were to meet the definition, then the employer would need to consider carefully the reason for dismissal. As stated above, simply attending such a demonstration does not in itself give the employer grounds to dismiss. However, if the fact that the employee has attended the demonstration leads to difficulties with other employees or customers of the employer then the employer would not then be taking action on the grounds on the employee’s belief, but in response to any concerns which flow from that. This is perfectly legitimate although a clear chronology demonstrating the effect of the employee’s attendance and the damage to the employer’s business along with evidence should be obtained to ensure it can be shown that the dismissal is for that reason and not because of the employee’s beliefs.
In conclusion, whilst there are options available to employers who find themselves in a situation where an employee has attended such controversial demonstrations, care needs to be taken to consider the matter in the round. A knee jerk reaction could lead to claims for discrimination and unfair dismissal and potential further reputation damage and cost and therefore a thorough investigation is advised before taking such action.
