With the recent decision in Redfearn v United Kingdom, the European Court of Human Rights (ECHR) signalled that there is a limit to how far an employer can let what an employee does in their own time affect decision-making in the workplace.
Employers have never been more sensitive to the opinions expressed by employees or activities carried out in their own time that could affect the workplace. However, with such awareness comes the realisation that reaching the right decision, in the view of courts, is not always straightforward.
As courts have long recognised, employers can take action where a conflict arises with the work employees are taken on to perform. This position was reinforced by the ECHR, which some time ago ruled that there had been no violation of the rights to respect for private life or freedom of expression in the case of a UK probation officer working with sex offenders. The individual had refused to give up outside commercial interests in a company selling products connected with bondage, domination and sadomasochism.
Signs of change
But recent decisions could signal a change in the way courts are prepared to place limits on an employer’s right to interfere.
In November 2012, the High Court upheld a breach of contract claim brought by Mr Smith, a housing manager demoted by his employer, the Trafford Housing Trust. He had posted comments on his Facebook wall indicating his objection to gay marriages in churches. The High Court rejected an argument that this amounted to any case of misconduct on Mr Smith’s part or a breach of his employer’s equality procedures, as they were not sufficiently work related. While his Facebook page made clear that he was employed by the trust, it was not used for work.
The widely reported case of Redfearn v United Kingdom, where the ECHR also set out its findings last month, followed the dismissal of an employee by service company Serco in 2004 after he was elected as a BNP councillor.
The employee was a bus driver responsible for transporting children and adults with physical and/or mental disabilities within the Bradford area, with the majority of his passengers being Asian in origin. In dismissing him, Serco considered that his continued employment posed a potential health and safety risk and could cause considerable anxiety among passengers and their carers, in addition to damaging the company’s reputation and jeopardising its relationship with Bradford City Council.
Employed for less than one year, Mr Redfearn was unable to bring a claim for unfair dismissal. Instead, he pursued a claim for race discrimination, which was not upheld on the basis that he had been dismissed on political rather than racial grounds.
With a right of further appeal refused, Mr Redfearn subsequently pursued a claim under art.11 (Freedom of Association) to the ECHR. The key argument was that the UK had failed to provide him with an effective domestic remedy against a dismissal, which had occurred as a result of his membership of a political party.
The ECHR recognised that Serco had been placed in a difficult position when Mr Redfearn’s BNP membership became public knowledge and accepted that even in the absence of complaint, this could affect its provision of services.
However, there had been no previous complaints made regarding his work and he had also been nominated for an award by his supervisor, who was of Asian origin. The ECHR also noted that he had been summarily dismissed without any consideration given to the possibility of a transfer to an alternative non-customer-facing role.
In the end, the concern was one of prospective problems, rather than anything that Mr Redfearn had done or failed to do.
The decision in Redfearn v United Kingdom
The ECHR emphasised that political parties were a form of association essential to the proper functioning of democracy. It was not for them to pass judgment on the policies or aims of the BNP as a political party, “obnoxious or otherwise”.
In the absence of judicial safeguards, permitting a dismissal solely on account of membership of a political party was open to abuse. In such a case, it was considered vital that a court or tribunal should be able to determine whose interests ought to prevail, regardless of length of service.
By a 4:3 majority, the ECHR found there had been a violation of art.11 in the case of Mr Redfearn and that the UK has a positive obligation to take reasonable and appropriate measures to protect employees from dismissal due to political opinion or affiliation.
This responsibility could be achieved either by amending unfair dismissal legislation to allow a further exception to the need for a one-year qualifying period, or to provide a separate claim for unlawful discrimination on such grounds.
The last word may not yet have been heard on this issue, as the Government may decide to refer the case to a Grand Chamber of the ECHR. While there is no immediate impact on private-sector employers, employees of public authorities may bring a claim directly under the Human Rights Act 1998 to challenge such dismissals.
However, these latest cases reinforce the importance to employers of considering the full range of issues before reaching a conclusion. Even where outside activities may be incompatible with the work performed, the question of alternative employment may need to be considered.
Alan Delaney is an associate in the employment team at Maclay, Murray and Spens LLP.