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Redefining unfair dismissal

New rules seek to hone legislation covering whistleblowers and the rights of employees to hold political beliefs

The Enterprise and Regulatory Reform Act (ERRA) will introduce two employment law changes this week (25 June to be precise). The first, relating to whistle-blowers, is a restriction on current unfair dismissal protection; the second, relating to political beliefs, is an extension.

Whistle-blowing laws were introduced in the UK in 1999 to encourage employees to speak up about illegal or unsafe practices at work without fear of reprisals. This includes enhanced protection against unfair dismissal: if you are a whistle-blower, you do not need the usual period of qualifying service to bring a claim and the cap on compensation is disapplied. To the surprise of many, the law has been interpreted by the courts to cover employees who complain about breaches of their own employment contracts, whether or not there is any “public interest” element. To close this ‘loophole’, ERRA will now require that complaints raised be in the public interest.

But the question remains: what is in the public interest? It seems possible that an employee could argue that complaints about breaches of their own employment contract may well satisfy this test. For example, an employee who is bullied by their line manager and raises a complaint for their own purposes also does so to prevent other employees suffering the same treatment. One suspects that this loophole has not been closed completely.

The change relating to political beliefs comes in response to a ruling last year by the European Court of Human Rights (ECHR) that UK law did not sufficiently implement the European Convention on Human Rights, specifically the Article 11 right to freedom of assembly. In a well-publicised case, a Bradford-based bus driver was dismissed for fear that his membership of the BNP would provoke an adverse reaction from his passengers. The required period of qualifying service for unfair dismissal (at the time of this claim, two years, but since reduced to one year) meant that this remedy was not available. The ECHR held that the qualifying period was not compatible with the convention and so, from 25 June, the ERRA will remove it for employees dismissed by reason of political opinion or affiliation.

At first sight, this appears a significant extension to unfair dismissal law but it is important to remember two things. First, a dismissal on these grounds will not be automatically unfair. An employer will still be able to justify its actions if it acted reasonably. Secondly, relatively few employers will want to restrict their employees’ political beliefs. What they are more likely to want is to control how those beliefs are manifested at work and that will still be possible provided it is done in a reasonable way.

Interestingly, the Government chose not to extend our existing discrimination law to cover political beliefs. By extending only unfair dismissal law, there remains limited protection regarding political affiliation during employment and at the point of recruitment. So, if an employer finds an individual’s -political beliefs unpalatable, it may be better placed not to recruit them in the first place. Just make sure no one blows the whistle on you.