Today's EAT review concerns the case of Jacqueline Kelly v South East Broadcasting Co Limited (UD1596/2009), where a journalist was dismissed due to the employer's concerns over her political affiliations and perceived independence or lack of it.

Case Name: Jacqueline Kelly v South East Broadcasting Co Limited (UD1596/2009)

Legislation: Unfair Dismissals Acts, 1997 TO 2007 (the “Acts”)

Jurisdictions/Subject Matter: Dismissal on grounds of political opinion.


Facts

The claimant was employed as a part time producer on the respondent’s current affairs radio programme from September 2007. She had run in local elections prior to her employment and informed the respondent in February 2009 that she was standing for election again.

It was alleged that the claimant’s position as producer was compromised by her decision to run for election in the Waterford City Council Elections. The respondent stated that they had understood that the claimant had “gotten politics out of her system” and they were not in a position to grant her a career break to allow her to canvas for the upcoming elections.

The claimant told the Tribunal that her personal politics were rarely mentioned in her employment. The claimant received a letter on the 12 February 2009 stating that her request for leave had been refused on the basis that similar requests from other members of staff had also been refused, but that her decision to run in the election would not compromise her position as a producer.

The Managing Director of the station stated that if the claimant continued to work for the respondent while running in the election, it could have put the programme and the station in disrepute and led to unbalanced discussions on air. It was said that 60% of the content of the programme which the claimant worked on was political and at certain times this increased to 90%. The station therefore required clear impartiality amongst staff.

The respondent advised the claimant that her position would be terminated if she ran in the election. The claimant received a letter of termination on 1 April 2009 and unsuccessfully appealed this decision. The claimant’s employment was terminated on 15 April 2009.


Determination

The Tribunal stated that the respondent was well aware of the claimant’s political background and had not considered it a bar to her employment. The Tribunal took this into account along with the letter of 12 February 2009 where it was set out that the decision to run in the elections would not compromise the claimant’s position as producer although the leave requested could not be granted. The Tribunal held that there were no reasonable grounds to dismiss the claimant in the circumstances and awarded her €11,521 under the Acts.
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Legal Review

Section 6 (2) of the Unfair Dismissals Act 1977 provides that where dismissal arises wholly or mainly from one of a number of grounds set out therein, it will automatically be deemed unfair. S6 (2) (b) refers to the religious or political opinions of an employee as one of the grounds.

In a defence of an unfair dismissal claim, the burden rests with the employer to show that the dismissal was a fair one. The employer must show that the dismissal was not wholly or mainly as a result of the employee’s political opinion. In this case the employer would have to show that it was not the political opinion which warranted the dismissal but that the impartiality of the employee had been compromised to such an extent that continued employment was no longer sustainable. Most likely the Tribunal would expect that an employee in such a situation be given an opportunity to remedy the situation.

In this case, the Tribunal could not find any substantial reasons justifying the dismissal. The respondent failed to show fairness in the dismissal of the claimant and further failed to adequately address the issues relating to the employee’s political opinion and had failed to demonstrate how it had affected her impartiality in the production of the radio show.

The implications of the Tribunal’s decision are widespread for employers where political impartiality is relevant to the role. Such considerations can arise in both the public and private sector.

It is therefore best practice that such employers have a comprehensive policy on employee impartiality. The policy should set out that the political opinion of an employee will never be a basis for dismissal but that employees must ensure that their opinions do not compromise their objectivity and professionalism in the workplace. If an employer suspects that an employee is no longer objective in their opinions, a review process should be in place to discuss the crucial objectivity requirement.

Where the review process is unsuccessful and the employment is to be terminated, the importance of fair procedure throughout the dismissal process cannot be overstated.

The Northern Irish case of In Re Aitken raises similar issues. The case involved an application for judicial review of the decision of the deputy chief constable of the RUC not to renew the contract of employment of the applicant, a full-time member of the RUC Reserve. The decision was made when the applicant attended the trial of a member of the Red Hand Commandos, a terrorist group accused of murdering a member of the Ulster Defence Regiment. The applicant was observed on numerous occasions during the trial in the company of members of the Red Hand group.

The conditions of service within the respondent set out that the applicant would abstain from any activity which was likely to interfere with the impartial discharge of his duties or which was likely to give rise to the impression amongst members of the public that it might so interfere, and in particular that he would not take any active part in politics.

The applicant was interviewed about his attendance at the trial but the unanimous conclusion, despite his denials, was that the applicant had associated with members of the Red Hand Commandos. It was therefore decided that it would not be in the interests of the public or of the police force to renew his contract. A review of the decision found that there was no basis to rescind the original decision which was duly confirmed.

The High Court in Northern Ireland found that the conduct of the applicant was highly relevant to the decision not to renew his contract and in the particular circumstances, the failure by the respondent to afford the applicant a second avenue of appeal did not make the decision an unfair one. His application was therefore dismissed.

The High Court in Northern Ireland suggests that where political opinion is of paramount importance to employment, the requirement of neutrality should be set out in the contract of employment, as was the case here. The deputy chief constable interviewed the applicant on the allegations and gave him an opportunity to respond. There was also an appeal process which the employee took part in and the failure to provide a subsequent avenue of appeal did not affect the fairness of the process.


Conclusion

In conclusion, employers should be aware that dismissal wholly or mainly for political opinion will never be a fair dismissal. Where dismissal is warranted as a result of an employee’s lack of objectivity or lack of impartiality, the employer should follow all fair procedures as required by legislation and must have evidence showing the substantial reasons necessitating the dismissal.