"If your business ain’t politics, keep politics out of your business"

These may be words which Grubhub Chief Executive Officer and co-founder, Matt Maloney, wished he had had in mind following the US Presidential election result.

Instead, Mr Maloney created a media backlash after sending an email to his employees which suggested that any employees who agreed with Donald Trump’s “nationalist, anti-immigrant and hateful politics” had no place at the company.

The post-election email, somewhat ironically entitled ‘Inclusion and Tolerance in the Workplace’, stated: “I want to affirm to anyone in our team that is scared or feels personally exposed, that I and everyone here at Grubhub will fight for your dignity and your right to make a better life for yourself and your family here in the United States. If you do not agree with this statement then please reply to this email with your resignation because you have no place here. We do not tolerate hateful attitudes on our team.” (my emphasis)

The Chicago-based online food ordering and delivery service not only faced calls to boycott the company following publicity of this email, with the hashtag #boycottgrubhub trending on Twitter, but also faced a reduction in their share price.

The email led to some commentators suggesting that if they worked at Grubhub and had voted for Trump they would have felt alienated. In the UK at least, there is a risk that this email may have breached employment laws.

Was it discriminatory?

The Equality Act 2010 (EqA 2010) protects employees and workers from discrimination on the basis of religion or belief. However, it is unlikely that this protection was in play here. This is because there is a fairly narrow definition of what amounts to a ‘belief.’ Previous cases have shown that (with some exceptions) support of a political party is not in itself a philosophical belief and therefore not covered by the EqA 2010. Indeed there have been cases involving employees who were members of the British National Party (BNP) who have failed to show they have been discriminated against in the workplace on the basis of their membership of the party.

Unfair dismissal

However, since 25 June 2013 an employee may be able to argue that they have been unfairly dismissed if the reason or principal reason for their dismissal is, or was, related to their political opinions or affiliation.

This follows a case called Redfearn v United Kingdom in 2012 which was heard at the European Court of Human Rights. In this case Mr Redfearn was dismissed on the basis that he had stood as a councillor for the BNP and could not perform his customer-facing role as the majority of his customers were of Asian origin. Mr Redfearn did not have the two year period of service required to bring a claim for unfair dismissal. He therefore argued his less favourable treatment as a result of membership of a political party (i.e. the dismissal) was an interference with his rights under Article 11 of the European Convention on Human Rights of freedom of association. The Court upheld Mr Redfearn’s claims and decided the UK was in breach by not providing any protection against dismissal on grounds of political opinion or affiliation. As a result from 25 June 2013 no minimum period of service is required to bring a claim for unfair dismissal on the basis of political opinion or affiliation.

The important point to note is that this change does not create a new ground for a discrimination claim or that any dismissal on this basis will be automatically unfair. The fairness of the dismissal still needs to be judged in the usual way (i.e. whether there is a fair reason, whether dismissal is within the range of reasonable responses an employer can have and whether a fair process has been followed). However, it is at least arguable that an Employment Tribunal is obliged to find a dismissal unfair if Article 11 is infringed, since Tribunals are themselves bound to interpret unfair dismissal laws in a manner compatible with the European Convention on Human Rights.

Conclusion

If a UK company had sent an email like this to its staff and dismissed someone as a result of their voting preference (or if someone resigned and claimed constructive dismissal), it could give rise to liability for unfair dismissal.

As a result, regardless of your views on the US Presidential (or any other) election and whatever your opinion of Mr Maloney’s intentions, imposing your political views or rallying employees to fall in line with your political views may be risky and it is probably best left outside the workplace.

Samantha Prosser is a solicitor at leading employment law firm BDBF