Can you sack a socialist?

Both Pub Philosopher and Paul Waugh have noticed something about the Equality Bill: the government’s explanatory note to clause 10 (scroll up the page for the note), which defines “belief” for the purposes of preventing discrimination on grounds of religion or belief, says that belief does not cover political beliefs such as Communism, Darwinism, Fascism and Socialism. Pub Philosopher reckons this means people can now be sacked for being members of the BNP; Paul Waugh thinks it means socialists can now be sacked.

In a sense they’re right: it probably is lawful to sack someone for being a member of the BNP, at least if an employer has a good reason not to want such people working for them. But that’s the law now: the Equality Bill will change nothing.

To understand what’s going on you need to know a bit of background. The key legislation here is actually Directive 2000/78, which requires EU member states to outlaw discrimination on grounds of religion or belief, but which does not define that concept. This paper from Lucy Vickers explains (see page 30) that some EU countries have implemented the Directive on the basis that “belief” covers political opinions; others haven’t. Interestingly she tells us the UK has not, except in Northern Ireland, where the relevant legislation specifically mentions political opinion. That is undoubtedly permitted: Article 8 of the Directive allows states to go further in combating discrimination than the minimum guarantees it requires. The big question, though, is whether the Directive itself actually protects political opinion as a minimum component of “belief”. The answer? I’m not sure, but I find it difficult to believe the European Court would read the Directive as permitting the sacking of, say, a stockbroker, simply and solely on the grounds that he or she is a member of the Conservative party. We won’t know, of course, until the point is tested in the ECJ.

So there certainly is some risk that sacking a BNP member could, depending on the particular circumstances of the job, breach the Directive – and therefore necessarily break UK law, whatever that law says. That was the position from the moment the UK implemented the Directive, and remains the position now.

The British government has always proceeded (in its implementation in Great Britain) on the basis that political opinion is not protected. Interestingly, the legislation has never referred to political opinion, which when you compare the Northern Irish text is a clear signal that including it was never the intention. See regulation 2(1) of the original 2003 regulations which said

“religion or belief” means any religion, religious belief, or similar philosophical belief.

Later, though, in section 44 of the Equality Act 2006, the government changed the definition slightly so that

“belief” means any religious or philosophical belief.

Nothing seems to have been intended by this – the explanatory notes to section 44 signal no actual change, and Baroness Scotland’s explanation in the House of Lords makes clear this was simply about drafting tidiness, dropping the word similar in order to get rid of the apparent implication that atheism, say, is “similar” to religious belief.

However some lawyers seemed to think this meant the government had changed the position; I don’t agree, although it’s right of course that the underlying uncertainty about the meaning of the Directive means sacking a BNP member involves at least some risk.

And now, we have the Equality Bill, which simply restates the 2006 Act, saying again at clause 10(2)

Belief means any religious or philosophical belief

Yes, the government’s explanatory notes say this doesn’t include socialism and fascism; and that may be right. What’s wrong is to think this would change anything. It doesn’t. The Equality Bill merely repeats the wording of the Equality Act 2006 on this. There is underlying uncertainty, caused by the lack of definition in the Directive, but this has not been affected by anything ministers have done to amend the legislation since 2003. I hope that clears things up…

Of course EU law is only one legal aspect of sacking a BNP member: an employer also has to worry about human rights law. Arthur Redfearn failed in his attempt to use the Human Rights Act to win (strangely enough…) a race discrimination claim against his employers, who sacked him as a bus driver because of his BNP membership. He would have had a more serious claim has he worked for them for a year and been able to claim unfair dismissal; then, relying on X v Y, he might have argued his dismissal was “unreasonable”, interpreting that term in section 98(4)(a) of the Employment Rights Act 1996 in line with the Article 9 Convention right to freedom of thought, conscience and religion. But that depends on membership of the BNP being covered by article 9; he’s having a go in the European Court of Human Rights, but the questions put by the Chamber to the parties in the case suggest to me he’s going to lose on article 9. If the court were with him, it wouldn’t be interested in the other articles.

My advice? If you have a good reason for sacking a BNP member (or indeed a socialist…), for instance how you think they may treat members of the public, or your fear that the public may not have confidence in him or her, then it’s probably okay to sack them. But can you ever have a good reason for sacking a socialist?