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Obviously an employer absolutely can't require employees to vote for any particular candidate (or even to vote for any candidate rather than spoiling their ballot), but if it was included as a clause in employees' contracts that they must (in company time) attend the appropriate polling station and "participate" in some defined set of elections (eg "all local and national governmental elections and referenda"), and that failing to do so was a disciplinary offence, would such a clause be enforceable? Would an employer legitimately be able to fire someone for failing to comply?

Looking for answers in relation to the UK.

Stephen
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    How would you go about proving that someone had not voted? – ItWasLikeThatWhenIGotHere Sep 16 '19 at 15:47
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    Same way you would audit any other employee activity: put the initial burden on them by expecting them to record it on their timesheet and submit a 'receipt' in the form of a checkin outside the polling station. To actually prosecute someone you would need to gather evidence (eg from company phone location data) that they were elsewhere. – Stephen Sep 16 '19 at 15:50
  • @ItWasLikeThatWhenIGotHere: At least in the USA, the record of who voted is public. It sometimes includes where they voted, and what time they voted (but obviously, never how they voted on candidates and issues) – abelenky Sep 16 '19 at 15:51
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    I suspect the answer to this question is no, as in the UK, the right to vote includes the right not to vote. I'll leave it to others to provide evidence of that, but in the meantime: what about employees who vote by post? – Steve Melnikoff Sep 16 '19 at 16:21
  • Choosing not to vote is a democratic right just as voting. And it may be a political statement, see the discussions about participation numbers after elections. – allo Sep 17 '19 at 08:25
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    First thing about people who vote by post. – Ian Ringrose Sep 17 '19 at 08:44
  • I expect you could require someone to go to the polling station, but not what they do once inside. – Ian Ringrose Sep 17 '19 at 08:45
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    You can incentivise them to vote, but you can't penalize not voting. – Mast Sep 17 '19 at 09:01
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    Whether or not it is illegal it would be unenforceable, since in the UK it is illegal to compel anyone to state whether or not they voted. In any case, it is not necessary to vote in person. As well as postal votes it is possible to authorize a proxy to vote in person on your behalf. – alephzero Sep 17 '19 at 09:09
  • You can't enforce it, but if you offer people an afternoon off to go vote (maybe with everyone going together, so people don't just go home) lots of people who were on the fence will do it just for the time off, and anyone who doesn't probably has a good reason they don't want to/cannot vote. – DBS Sep 17 '19 at 09:29
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    @DBS: "maybe with everyone going together": if voting in person, you vote near where you live, which may be nowhere near where you work. So again, this is unenforceable. – Steve Melnikoff Sep 17 '19 at 10:57
  • In Denmark this would legal based on a law from 1899 (right of management) where you can put most clauses into a contract and then employees have to fulfil it. But from a practical point of view I think it would be more efficient just to put in a right to a few hours off for those that are voting. – Thomas Koelle Sep 17 '19 at 12:46
  • @SteveMelnikoff The whole thing is entirely unenforceable. I was just suggesting that making it a group thing for people who are in the same area may be an additional motivator, not that it would guarantee people actually voted. (Even just having two people together massively reduces the "I'll do it later" mindset) – DBS Sep 17 '19 at 12:46
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    So what happens to employees who aren't eligible to vote (e.g. those under 18, immigrants, etc.)? Do they just get stuck at work for an extra hour, covering for everyone who is out voting? – Kenneth K. Sep 17 '19 at 13:40
  • I think the carrot, rather than the stick, would work best here. I don't know many people who wouldn't take the time to go vote if their company were paying them to do so. That alone makes it worth it to me. – Erin B Sep 17 '19 at 17:41
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    @DBS Perhaps if an employee was working some distance from home and they complained that the unusual circumstances of their being away precluded them from voting, the employer might say - "Ok take the afternoon off, and go and vote". If the employer later discovered, and could prove, they hadn't voted, he may have some justification for considering it "misconduct". But any general requirement on employees to vote, would almost certainly be unenforceable under UK Employment Protection, It might also amount to electoral interference and in contravention of the Representation of the People Act. – WS2 Sep 17 '19 at 17:53
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    "and submit a 'receipt' in the form of a checkin outside the polling station." Is that a UK thing? Because in the US that would be not just absurd, but highly illegal. – RonJohn Sep 17 '19 at 19:44
  • @WS2 I never suggested anyone would have to vote, I was offering a suggestion of an incentive that a manager could give to encourage and facilitate voting, rather than the impossible task of legally enforcing it. I suggested that people should be allowed (not forced to) take an afternoon off to vote, if the manager is attempting to get more of their employees voting. – DBS Sep 17 '19 at 22:29
  • Seems easier to just give them the afternoon off and trust that you hired concerned citizens. Sure avoids a lot of obscure legal headaches by transporting them there yourself! – corsiKa Sep 18 '19 at 07:54
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    can I compel my employees to vote? If you threaten anyone with something that is none of your business, you are well on your way to becoming the most hated boss in the company. If you care, give them time off to vote. – Mattman944 Sep 18 '19 at 08:43
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    Can employers force themselves to get involved in their employees personal business? Could you put in a contract, "You may never get romantically involved someone whose name begins with 'S'" or "You must take an interest in the Premiership" (requiring checkins at matches as proof)? It really seems outside the remit of an employer-employee contract... – komodosp Sep 18 '19 at 08:55
  • Apart from all other reasons why not, you cannot tell if someone enters the polling station, chooses not to vote and then leaves. – TripeHound Sep 18 '19 at 15:03
  • I don't know what the law says, but the reason for not voting can clearly be because employee has a particular political opinion. Maybe (s)he does not trust the voting process or the vote counting. Then it would be political discrimination to fire based on it. – mathreadler Sep 18 '19 at 15:38
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    What kind of tyrant would want to compel an employee to vote? This might be the worst idea I've ever heard from an employer. Even learning an employer wished they could compel employees to vote would make me want to leave the company as soon as possible. – bubbleking Sep 18 '19 at 15:46
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    To someone from France, the whole premise sounds fantastic (as in Fantastic Beasts and Where To Find Them). How is it possible that in a work contract such points are even mentioned (in France this would not exist - one can write it but since this is not covered by Employment Law it does not exist from the contract perspective.) – WoJ Sep 18 '19 at 16:05
  • @bubbleking good thing I'm not an employer then ;-) – Stephen Sep 18 '19 at 17:32
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    @WoJ It seems fantastical to the rest of us too - certainly to anyone in Britain. I've never heard of an employer insisting that their people vote, and would find it astonishing if I did. – WS2 Sep 18 '19 at 18:52
  • Aside from the other reasons pointed out, this is a terrible idea. Do you think that people who have no interest in politics / voting, but are now forced to vote, are going to make choices that are good for the country? There is a reason why most countries don't have compulsory voting in the first place. – JBentley Sep 19 '19 at 13:48
  • @abelenky In the UK, the list of people who voted is not made public. – David Richerby Sep 19 '19 at 15:38

6 Answers6

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Nobody so far has discussed Electoral law e.g. Representation of the People Act 1983

There are various clauses that may be relevant, one of which is:

A voter shall be guilty of bribery if before or during an election he directly or indirectly by himself or by any other person on his behalf receives, agrees, or contracts for any money, gift, loan or valuable consideration, office, place or employment for himself or for any other person for voting or agreeing to vote or for refraining or agreeing to refrain from voting.

Subsection 2 similarly makes it an offence to offer employment to induce any voter to vote or refrain from voting but somewhat less concisely. I believe this would make such a contract unenforceable.

richardb
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    Presumably unenforceable because by requiring the employee to sign a contract including such a clause, you are compelling them to commit an offence? – Stephen Sep 17 '19 at 16:05
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    @Stephen - The way I read this, both parties to the transaction would be "guilty of bribery". – T.E.D. Sep 17 '19 at 16:25
  • Seems strange--you'd think encouraging people to vote would be okay. Encouraging them not to vote is obviously not good. I suppose it keeps people from going to a retirement home and bribing everyone to vote after determining that most of them will vote a certain way. – Bill K Sep 17 '19 at 21:41
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    @BillK encouraging people to vote is okay, bribing them to do so is not. – Chieron Sep 18 '19 at 11:24
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    @BillK You can encourage them to vote (e.g. give everyone a half-day's paid leave on Voting Day, and send emails or put up posters in the office to "remind" people), but you can't include it in the employment contract as a requirement. Choosing not to vote is a valid political belief - for example, if you believe that NONE of the available candidates represent you (e.g. if your MP is the Speaker of the House of Commons, and is essentially running unopposed...) – Chronocidal Sep 18 '19 at 12:23
  • How is giving them a half-day paid leave not a "valuable consideration"? Perhaps the law is just ignored in this case, or interpreted leniently? Also makes you wonder--would a non-citizen without the vote also get a half day? Actually maybe that's the difference! As long as you give EVERYONE the half day without the requirement to vote it's not "Agreeing to vote". That must be it--problem solved :) – Bill K Sep 18 '19 at 16:38
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    @BillK You got it -- giving them the time off doesn't force them to use it to vote. Some countries even make Election Day a national holiday, which makes it easier to vote, but still doesn't force them. – Barmar Sep 18 '19 at 18:16
  • @Stephen as per the discussion above by Chronocidal, Bill K, and Barmar, the best you could probably do is provide universal paid time off on election day -- with no requirement to vote or not... so that those who wish to do so may, but those who wish to not vote (or can't vote, for whatever reason) still receive the same benefit. – Doktor J Sep 18 '19 at 21:21
  • @T.E.D. no, the clause puts the crime on the recipient of the bribe, not the person offering it. This is probably to ascertain that people forced to pay bribes aren't punished for doing so (in this case the employee would be offering the bribe, as in his vote, for the compensation of receiving continued employment). That said, requiring employees to vote may well be illegal under other statutes. – jwenting Sep 19 '19 at 05:14
  • @BillK that half day leave would be a "valuable consideration", therefore the employer can offer it but cannot demand it be used for the express purpose of going to the polls and vote. Similarly, the employer can offer to provide transportation to a polling station but not demand the employee actually vote on arriving there. – jwenting Sep 19 '19 at 05:16
  • @jwenting Added some words to clarify that both parties would be committing an offence. – richardb Sep 19 '19 at 07:22
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Enforcement by firing a person could be a problem. There are specific allowed reasons to fairly fire an employee, which does not include "failure to vote". The description of unfair reasons includes, as an example, joining a trade union, and other actions that have some imaginable connection to the workplace. But the government has not clearly declared that political expression (or its lack) is or is not fair grounds for dismissal. Such a firing would be subject to scrutiny under the unfair dismissal doctrine, which means that the two sides would seek supporting analogs in UK case law.

The factors that favor a "fairness" finding are heavily weighted towards the legitimate business interests of an employer. This article analyzes free speech rights in connection with the unfair dismissal doctrine. As an example, in Smith v. Trafford Housing Trust, the claimant was punished (demoted) -- unfairly, the Employment Tribunal found -- for expressing a political viewpoint on Facebook. The Tribunal noted that the outcome would have been different if claimant had promulgated his views in the workplace. If an employee's action brings a business into disrepute, perhaps a dismissal could be found to be fair. But failure or refusal to vote does not have that effect: it is not a legitimate business interest of the company whether the employee votes.

Dale M
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user6726
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    I agree; firing someone for not voting a secret ballot is probably untested law, but I'm pretty sure the test would be exactly the same as if they fired you for voting for a candidate. For instance, expecting a Sinn Fein party member to participate in a British election might offend their beliefs, and whether they are Sinn Fein is none of your beeswax. – Harper - Reinstate Monica Sep 17 '19 at 06:37
  • @Harper I believe in NI (where Sinn Fein members are likely to be), employers aren't allowed to discriminate on political opinion, while in the rest of the UK it isn't protected. – DavidW Sep 17 '19 at 12:25
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    @DavidW During the Employment Appeal Tribunal case Henderson vs GMB (March 2015), it was ruled that Political Beliefs do fall under the Protected Characteristic of "Religion or Belief" (Section 10 of the Equality Act 2010) – Chronocidal Sep 18 '19 at 12:16
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If you're an employer who really wants their employees to vote, there are much easier ways. Arranging a minibus to the voting booth and the rest of the afternoon off for those that go to the voting booth would be the most obvious solution. Compared to the cost of lawyering up and trying to put together a legally-enforcable contract, plus the cost of enforcing it, a couple of hours off for your workers is likely to be a whole lot less expensive. There's no need to use a stick when carrots are cheaper.

And yes, as an employer you would be entirely within your rights to tell employees who didn't go to vote that they wouldn't get the afternoon off. Employers can give discretionary time off however they choose.

Graham
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    The minibus may not be viable: each person may have to go to a different polling station. – Peter Taylor Sep 17 '19 at 10:12
  • @PeterTaylor Possibly, but it's a good start. If you're doing right by your employees, they're a lot more likely to do right by you. – Graham Sep 17 '19 at 10:38
  • @PeterTaylor: In Australia, voting in the another electorate's polling booth is a little more work, but definitely possible. Is that not the case in the UK? – Oddthinking Sep 17 '19 at 12:51
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    @Oddthinking, the polling station handbook mentions such a possibility for polling station staff and police officers (p16), but after discussing other exceptional cases states "Anyone else who is not on the register of electors (or the notice) for that polling station must not be allowed to vote" (p24). – Peter Taylor Sep 17 '19 at 13:23
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    @Oddthinking No, AFAIK it is not the case generally. Having lived in both Australia and the UK I can say my impression is it is much harder to vote in the UK for many bureaucratic reasons. I can't find a definitive reference but see "Can I vote at a different polling station?" at https://www.bromley.gov.uk/info/200033/elections_and_voting/219/voting_in_elections/5 – user133831 Sep 17 '19 at 13:46
  • Whilst this might be a solution to the OPs problem, this is not an answer to the legal question asked. This site is for answering legal questions, not for providing solutions. Downvoted. – Greendrake Sep 17 '19 at 13:52
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    "Employers can give discretionary time off however they choose." -- is this really true? Isn't there a legal risk if you do so in a discriminatory fashion? – Ben Millwood Sep 17 '19 at 16:08
  • My employer (in the US) just gives major-cycle election days off, with pay. That seems like more than enough to encourage voting, without forcing it. – T.E.D. Sep 17 '19 at 16:27
  • @Oddthinking don't know about the UK, but in the Netherlands it's possible to transfer your callup card for elections to another polling station, but it's a hassle involving going to city hall, getting forms, etc., and then only for national elections, not local, and for regional elections limited to within the region you're registered. So I work in a province different from the one I live in, I'd not be allowed to vote in provincial elections in the province I work in. – jwenting Sep 19 '19 at 05:50
  • I recall in the US, in the 1970s, my mother receiving free donuts from a donut store just for showing her voting slip (proving she voted). As a young child, even I couldn't wait to vote - carrots go a lot longer than sticks. – NBF Sep 19 '19 at 10:03
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Good answer already from user6726, but an additional consideration why the original contract could be ruled unlawful would be if an employee's belief in a right not to vote could be considered a "philosophical belief" under the Equality Act 2010. According to ACAS, criteria for this had been defined at an earlier (2009) tribunal.

The ACAS link compares religions with other philosophies, but there are also religions who advocate political disengagement. If an employee was politically disengaged for religious reasons, it would be easy to argue that the contract constituted discrimination that was prohibited by the Equality Act.

ItWasLikeThatWhenIGotHere
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    Spoiling your ballot is generally an option (I think even with some electronic voting systems), so an employee in this hypothetical situation could satisfy that contract requirement while still not actually voting for any candidate. Casting a spoiled ballot is not the same as not going to a poll at all, though, as far as voter turnout numbers and counts of spoiled ballots typically indicating voter dissatisfaction with the entire process / system instead of non-engagement. Anyway, probably still possible to use this argument against such a clause. – Peter Cordes Sep 17 '19 at 01:40
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    @PeterCordes: Last one I looked at, spoiled ballot was impossible but an all-blanks was possible and I'd be very disappointed if it didn't have the same effect. – Joshua Sep 17 '19 at 03:21
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    @Joshua the question is tagged [tag:england-and-wales] where all voting is on paper and distinctly spoilable – Will Sep 17 '19 at 08:14
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Assuming the question is targeted at any part of the UK: in Northern Ireland it is specifically illegal for employers to discriminate against people based on their political opinion:

(1) In this Order “discrimination” means—

(a)discrimination on the ground of religious belief or political opinion; or

(b)discrimination by way of victimisation;

(I believe in the rest of the UK this isn't explicitly protected, however - as pointed out in the comments - "religion or belief" is now interpreted to include political opinion.)

You could probably argue that choosing not to vote is a political opinion, and therefore forcing people to vote would be illegal in NI.

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DavidW
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  • During the Employment Appeal Tribunal case Henderson vs GMB (March 2015), it was ruled that Political Beliefs fall under the Protected Characteristic of "Religion or Belief" (Section 10 of the Equality Act 2010). So this is considered a Protected Characteristic in the entirety of the UK, and is just as illegal in England, Scotland and Wales as it is in Northern Ireland. – Chronocidal Sep 19 '19 at 15:08
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    Fair enough - I did see your comment early. I've made a small edit to clarify. I really wasn't trying to claim much about the situation in the rest of the UK - I was more saying that this definitely applies in NI. – DavidW Sep 19 '19 at 15:15
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No. You are not allowed to discriminate (in most Euro and Anglo countries) based on religion, political position, or national origin.

Someone's religion might prevent them from voting, e.g. Due to a clerical order because of some issue at stake, say.

Off the top of my head, Sinn Fein refuses to participate in anything that legitimizes Crown control of Northern Ireland. There could be other cases.

Someone might have the right to work in your country, but not citizenship and hence would be prohibited from voting. Say, if your worker was from the EU but not your own country.

You can't say "You *must vote" without implying there is an "Or Else". Whatever the "Or Else" is, it's discrimination.

So firing them for not voting becomes a pretense for firing them because they're Pastafarian, non-Ulster, or foreign.

Harper - Reinstate Monica
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    Sinn Fein party members most definitely take part in parliamentary elections. They elect Sinn Fein candidates as MPs (7 of them, in the most recent election). But having been legally elected on the manifesto that they will refuse to participate in the parliamentary system, they never actually take their seats. Of course, electing them has the side effect that no-one else is elected for that constituency who would take an active role in parliament. – alephzero Sep 17 '19 at 09:02