In the recent case of Redfearn v the United Kingdom, the European Court of Human Rights held that the UK had violated art.11 of the European Convention on Human Rights – the right to freedom of assembly and association – by not making available to an employee a remedy in circumstances where he was dismissed from his job within the first year of employment for being a member of the British National Party. Solicitor Laurence O’Neill looks at the facts of the case, the court’s findings and its potential implications for employers.
Mr Redfearn was employed by a private company, Serco Limited, as a driver. He was responsible for transporting mentally and physically disabled passengers on behalf of Bradford City Council. The majority of his passengers, and a significant number of Serco’s employees, were of Asian origin. Soon after joining Serco, Mr Redfearn became a local councillor for the British National Party (BNP). Despite being a “first class” employee, due to concerns about the racist agenda of the BNP, and having regard to the ethnicity of Serco’s staff and passengers, Serco dismissed Mr Redfearn.
Mr Redfearn did not have the requisite length of service to claim unfair dismissal. He therefore had to bring his claim under the Race Relations Act 1976 (the events occurred well before the implementation of the Equality Act 2010), arguing, among other things, that he had been treated less favourably on the grounds of race, specifically the race of Serco’s staff and passengers. The employment tribunal found against him, holding that the reason for any less favourable treatment had not been race but, rather, to protect the health and safety of Mr Redfearn and Serco’s passengers. Mr Redfearn successfully appealed to the Employment Appeal Tribunal (EAT), but the Court of Appeal subsequently overturned the EAT’s decision. In rejecting the claim, the Court noted that Mr Redfearn’s complaint was of discrimination on political grounds, which fell outside the scope of the anti-discrimination legislation.
Mr Redfearn was refused leave to appeal to the House of Lords and therefore lodged an application against the UK at the European Court of Human Rights (ECtHR) arguing, among other things, that the UK had disproportionately interfered with his right to freedom of assembly and association under art.11 of the European Convention on Human Rights (ECHR).
The European Court of Human Rights’ findings
The ECtHR found that the UK had violated art.11 of the ECHR by not taking reasonable and appropriate measures to afford employees a remedy in circumstances where they are dismissed for their political opinions or affiliations. A claim for race discrimination was not an appropriate remedy. A claim for unfair dismissal would be an appropriate remedy but that was denied to employees who did not have the requisite length of service. The court noted that exceptions to the qualifying period were available in some cases and felt that it would be reasonable for the UK to make a further exception in the case of dismissal for political opinion or affiliation. Alternatively, the UK could legislate for a free standing claim of unlawful discrimination on those grounds.
The potential implications for employers
It is unclear how the UK will respond to this decision. Domestic courts may now feel compelled to interpret existing legislation to accommodate the decision, for example by holding that membership of a political party amounts to a “philosophical belief” and that any unfavourable treatment on that basis (including dismissal) would amount to unlawful “religion and belief” discrimination under the Equality Act 2010. Alternatively, Parliament may act to amend or enact legislation along the lines suggested by the ECtHR, either by removing the qualifying period for unfair dismissal in such cases or by creating a free standing claim for discrimination.
Until the UK’s response is clear, employers should proceed cautiously. This is particularly true of public-sector employers, whose employees may be able to bring claims under the Human Rights Act 1998 in circumstances where they are denied the opportunity to complain about unfair treatment on the grounds of their political beliefs or affiliations.
Both public- and private-sector employers should refrain from dismissing employees, even those with less than the required service for claiming unfair dismissal, for their political opinions or affiliations or they will almost certainly face claims of direct discrimination. Where it is not an employee’s political beliefs or affiliations that is the issue but the objectionable manifestation of those beliefs or affiliations, then employers may be on safer ground and may be able to defend claims for discrimination and unfair dismissal provided it was reasonable in all the circumstances to dismiss and alternatives to dismissal are considered.
Ultimately, however, where there is no objectionable manifestation of the employee’s politics, and until we know how the UK will respond to this decision, employers will simply have to weigh the legal risks against the practical and commercial risks of retaining the individual in employment. When in doubt, legal advice should be sought.
Laurence O’Neill is an assistant solicitor in the employment department at SGH Martineau LLP