Law and Sir Chris Kelly: MPs’ spouses

We’re getting used by now to MPs moaning that the sensible expenses rules now being applied to them are supposedly unlawful. The latest claim is that preventing MPs from employing spouses and relatives would lead to unfair dismissal, sex discrimination and wrongful dismissal. Again, and predictably, this is rubbish.

We don’t know of course the detail of Kelly’s proposals: there is some suggestion that this change would be phased in some way – perhaps applying only to new MPs after the next election, and to all MPs from the election after that. I’m not sure any of that is critical in legal terms, though.

First, wrongful dismissal – which essentially just means breach of contract. Whether MPs’ spouses who work for them have contracts of employment (i.e. they are employees) or contracts for the provision of services (i.e. they are contractors) must depend on individual arrangements, I suppose. Either way, it is surely impossible to interpret such a contract as giving the spouse a right to work as an MP’s assistant permanently. As Liam Murray rightly suggested in comments at Iain Dale’s Diary, they can’t possibly be employed as MPs’ assistants when Parliament is dissolved and there are no MPs. To take that further, you can’t possibly have a contract to serve as an MP in the next Parliament, giving you contractual rights to do so regardless of the voters’ choice. Surely these must, properly construed, be fixed-term contracts of employment or for services in the current Parliament. In those circumstances, I don’t think there can be any breach of contract if no MPs’ spouses contracts are renewed after the next election – regardless of how long they’ve served. And even if the rules come in before then, I don’t see how the contracts can be interpreted as giving spouses contractual rights regardless of Parliament’s internal rules. They can only sensibly be read as subject to the internal rules Parliament adopts for MPs’ conduct.

Nor do I think even applying the new rules tomorrow to all MPs would lead to unfair dismissal. I assume Kelly’s proposal will be that the “no spouses rule” be adopted by the new Independent Parliamentary Standards Authority as part of its allowances scheme under section 5 of the Parliamentary Standards Act 2009 – that’s the only way it can be made compulsory for MPs since investigations under section 9 can only be for improper allowance claims or failure to declare financial interests. So he must be proposing what I’ve suggested, or else amendment to the Act. In those circumstances, dismissal would surely be lawful under section 98(2)(d) of the Employment Rights Act 1996 as

the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

That obviously includes the duty or restriction Sir Chris is proposing be imposed by the 2009 Act. Even if there were no such legislation, in my view the dismissal would be for “some other substantial reason” under section 98(1)(b). It is inconceivable that a tribunal would think, in the context of the new allowances scheme, that for the purposes of section 98(4) the MP acted unreasonably in dismissing the spouse in those circumstances.

It’s also said there may be sex discrimination here, and on the face of it there may be indirect discrimination, if more wives are affected than husbands. A sex discrimination claim is problematic, though, since each MP employer only employs one spouse – Parliament is not the employer of all these spouses, and I don’t think it’s obvious that the dismissed wife of one employer can compare herself for the purposes of discrimination law with the dismissed husband of another. But even if that hurdle can be overcome, the real point is that indirect discrimination is lawful under section 1(2)(b)(ii) of the Sex Discrimination Act 1975 if justified irrespective of sex, and to let an employee go so as to comply with legal requirements would certainly be justified.

A last thought strikes me. I suppose, as a stunt, that a dismissed wife might go to an Employment Tribunal – claiming unfair dismissal, say, against her MP husband – and that her husband could decide not to defend the claim, both of them hoping to be able to brandish a finding of unfair dismissal. Thankfully, I doubt that would work either, since the Tribunal Chair would have power under rule 10 of the Employment Tribunals Rules of Procedure (which are in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004) to stay the proceedings.