Recently the European Court of Human Rights has said
that the UK must implement measures to protect employees from
dismissal on the grounds of their political opinions or
affiliations, including extreme opinions that 'offend, shock or
disturb'. Reema Jethwafrom our Employment Team
explains.
In the case of Redfearn v United Kingdom, Mr Redfearn was
employed by Serco Ltd as a bus driver providing transport for
disabled adults and children - the majority of which were of Asian
origin. Throughout Mr Redfearn's employment with the company,
there were no issues with his performance or his conduct, indeed he
was nominated by his supervisor as a 'first-class
employee'.
However, following an article being published in the local
newspaper which identified Mr Redfearn as a candidate for the
British National Party (BNP), the Trade Union and Serco's
workforce began raising their concerns. At the time, membership of
the BNP was restricted to white people and was primarily
'opposed to any form of integration between British and
non-European peoples'. Following his election as a local
councillor, Mr Redfearn was dismissed immediately on the grounds
that his continued employment would:
- Present a risk to the health and safety of its employees and passengers
- Cause considerable anxiety to its passengers and their carers
- Jeopardise Serco's reputation
At the time of his dismissal in June 2004, Mr Redfearn had less
than one year's continuous service; this meant that he was
unable to bring a claim for unfair dismissal. Therefore, Mr
Redfearn sought to bring a claim for race discrimination. This
claim was rejected by the Court of Appeal which stated that
discrimination law should not be used to protect employees from
unfavourable treatment for acting in a way that is racially
discriminatory. Mr Redfearn tried to argue that he was dismissed
because he was white and so this was on racial grounds. This
argument was also rejected as his dismissal was due to his
membership of the BNP not because he was white. Mr Redfearn's
complaint was of discrimination on political grounds, which fell
outside of anti-discrimination law. Additionally he was unable to
bring a claim under the Human Rights Act 1998 as Serco was not a
public authority.
As Mr Redfearn was not allowed to appeal to the House of Lords
regarding the decision, he then applied to the European Court of
Human Rights for a declaration that his dismissal was incompatible
with his rights under Articles 10 (freedom of expression) and 11
(freedom of association) of the European Convention on Human
Rights.
The European Court said that Article 11 provided a universal right
of freedom of assembly which applies to all associations including
those which offend, shock or disturb. The European Court considered
it incumbent on the United Kingdom 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
free-standing claim for unlawful discrimination on grounds of
political opinion or affiliation. As the United Kingdom's
legislation was deficient in this respect, the Court concluded that
the facts of the present case gave rise to a violation of Article
11.
What does this mean for employers?
The timing of this decision is important given that the
Government has recently pushed unfair dismissal rights beyond the
reach of many employees by increasing the service requirement from
one to two years. It remains to be seen how the Government will
react to this particular ruling by the European Court of Human
Rights. However claims under the Equality Act 2010 can of course be
brought from day one in respect of dismissals that are
discriminatory – as opposed to unfair.
Whilst claims can be brought on the grounds of religion and belief
(even political philosophies such as socialism, Marxism, communism
or free-market capitalism) more objectionable beliefs – such
as racist or homophobic political philosophies – might not be
protected, as they would offend against the requirement that
protected beliefs should be 'worthy of respect in a democratic
society and not incompatible with human dignity'. This may
therefore present a bar to Mr Redfearn claiming religious/belief
discrimination under the Equality Act 2010.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.