Labour & European Law Review Weekly Issue 305 07 February 2013
The Equality Act 2010 applies to anyone discriminated against on various grounds such as race and sex, but not on grounds of their political beliefs or affiliations. The European Court of Human Rights (ECtHR) has said in Redfearn v United Kingdom, however, that employees are entitled to be protected by law from dismissal as a result of their political beliefs or affiliations, no matter how offensive their views.
Mr Redfearn worked for Serco Ltd as a driver and escort for disabled children and adults in Bradford, which has a large Asian population.
In June 2004, he was elected as a BNP councillor. Following representations from unions and individual employees, Serco summarily dismissed him at the end of June, saying that his very public membership of the BNP presented a serious risk to the health and safety of other employees and passengers, many of whom were Asian.
As he had not been employed long enough to bring an unfair dismissal claim, Mr Redfearn brought claims of direct and indirect race discrimination under the Race Relations Act 1976 (RRA, now part of the Equality Act 2010).
Decisions of British courts
The tribunal dismissed his claims of discrimination, saying that his dismissal was justified on health and safety grounds. The EAT, however, overturned that decision, but the Court of Appeal allowed Serco’s appeal, finding that Mr Redfearn’s claim amounted to a complaint of discrimination on political and not racial grounds, which fell outside the scope of anti-discrimination laws.
Mr Redfearn then lodged a claim at the ECtHR against the UK Government on the basis that UK laws failed to protect him from dismissal which interfered with his right to freedom of expression (article 10) and freedom of assembly and association (article 11) under the European Convention on Human Rights.
Decision of ECtHR
The Court, by a slim majority of 4-3, found in Mr Redfearn’s favour and said that the most appropriate remedy for someone dismissed because of their political beliefs or affiliation in the UK was a claim for unfair dismissal under the Employment Rights Act 1996.
However, as he had not been employed for a year Mr Redfearn had to bring a race discrimination claim which did not really cover the situation and did not afford him protection from interference with his right to freedom of assembly and association.
Whatever anyone thought about the BNP and its policies, the Court said that “the fact remains that Article 11 is applicable not only to persons or associations whose views are favourably received or regarded as inoffensive or as a matter of indifference, but also those whose views offend, shock or disturb ...”
It was important that domestic courts or tribunals should be allowed to decide whether or not, in the circumstances of a particular case, the interests of the employer should prevail over the article 11 rights asserted by the employee, however long they had been employed.
In this case, it was incumbent on the UK “to take reasonable and appropriate measures to protect employees, including those with less than one year’s service, from dismissal on grounds of political opinion or affiliation, either through the creation of a further exception to the one-year qualifying period or through a freestanding claim for unlawful discrimination on grounds of political opinion or affiliation”.
As UK legislation was “deficient” in this respect, Mr Redfearn’s rights under article 11 of the Convention had been violated.
There are some subtle differences between now and 2004 when Mr Redfearn’s case started, not least that the qualifying period for unfair dismissal was one year whereas it is now two. It is also of note that Mr Redfearn brought his case under the RRA 1976 and not under the Religion and Belief Regulations 2003, under which he could claim that membership of the BNP constituted a protected ’philosophical belief‘.
It is, as yet, unclear how the government will react to the judgment. It could appeal to the Grand Chamber of the Court for the case to be re-examined by a full panel of 17 judges. It would be unusual for the Grand Chamber to do that, but given the slim majority it may agree. If the government decides not to appeal then it will need to give effect to the judgment by amending unfair dismissal law to allow for protection from dismissal for political beliefs regardless of the employee’s length of service. Given the current political climate this would be surprising as the government is intent on retracting rather than expanding the law of unfair dismissal.