ECtHR rule that dismissal of bus driver due to BNP membership was in breach of employee's human rights

Redfearn v The United Kingdom (Application no. 47335/06)

In addition to finding that the dismissal was a violation of the European Convention on Human Rights, the ECtHR also commented that previous qualifying period of one year for unfair dismissal protection was "deficient".

Facts

Mr Redfearn brought this claim to the European Court of Human Rights ("ECtHR") having failed in his claim for race discrimination against his employers, Serco Limited ("Serco").  Mr Redfearn had been employed in December 2003 as a driver by Serco, who provided transport services to Bradford City Council. Although there had been no complaints about Mr Redfearn's work, Serco terminated his employment in June 2004. It had been revealed in a newspaper article the previous month that Mr Redfearn was standing as a candidate for the British National Party ("the BNP") and, in June, he was duly elected to the local council.  Due to increasing pressure from trade unions and individual employees protesting about its continued employment of Mr Redfearn, combined with concern about passenger reactions and the potential effect on its contract with Bradford City Council, Serco took the decision to dismiss.

As Mr Redfearn did not have the requisite one year length of service for protection from unfair dismissal, he lodged a claim in the employment tribunal for race discrimination under the Race Relations Act 1976, such claim not requiring a qualifying period of service. It was argued that discrimination had occurred as a majority of passengers and employees of Serco were of Asian origin and as the BNP was (at that stage) a "whites-only" party, his dismissal constituted indirect racial discrimination.

The employment tribunal dismissed the claim, and though it was upheld by the Employment Appeal Tribunal, the Court of Appeal overturned this decision and re-instated the tribunal's decision.  Leave to appeal to the House of Lords was refused and therefore Mr Redfearn took his claim to the ECtHR.

Decision

As Mr Redfearn was employed by a private company, the ECtHR could not consider whether the dismissal itself was reasonable or proportionate, but considered whether domestic legislation offered sufficient protection of his rights.

Although a number of breaches of the European Convention on Human Rights ("ECHR") were alleged, the ECtHR focused on the breach of Article 11, freedom of assembly and association.  This right, the ECtHR held, was breached by the dismissal.

The need for one year's qualifying service to make a claim for unfair dismissal on grounds of political affiliation was expressly criticised by the ECtHR, who considered it incumbent on the state to take reasonable and proportionate measures to protect employees from such detriment. A legal system which allowed dismissal from employment solely on account of an employee's membership of a political party carried with it the potential of abuse and accordingly, UK legislation was held to be deficient.

Comment

This was a narrowly decided case, with three dissenting judges (including the UK's representative) out of seven.  These judges felt that the one year qualifying period for unfair dismissal was within the UK's discretionary margin and that the imposition of immediate protection from dismissal on the grounds of political opinion was a step too far.  The ability of an element of choice in their political opinions (unlike immutable characteristics such as race) was also a relevant consideration.

In one sense, this could be viewed as a judgment that has little practical effect, as the law has moved on. Mr Redfearn's case was brought under race discrimination legislation. There have been a number of cases under the Employment Equality (Religion or Belief) Regulations 2003 (now replaced by the Equality Act 2010), legislation which expressly protects non religious beliefs. These cases have to date have given mixed decisions as to whether or not a political belief can be protected under the legislation, and indeed at least two cases have held that BNP membership is not protected.  In light of this decision, I would envisage that tribunals will be much more likely to view political beliefs as capable of being protected under discrimination legislation.

However, public authorities are, of course, subject to the direct effect of EU legislation, and therefore public sector employees who are dismissed for membership of a political party could in addition seek to make a claim under the Human Rights Act 1998, even though they may have no qualifying unfair dismissal protection.

Further, it is interesting to note that the law has also changed with regards to the unfair dismissal qualifying period, which is now 2 years from 6 April 2012.  As the ECtHR was critical of the one year qualifying period required for such protection in relation to dismissal for membership of a political party, there could be an opportunity for further challenge if the tribunals do not interpret the Equality Act 2010 to give sufficient protection to political beliefs or, indeed, if other characteristics not enshrined in the Equality Act 2010 are sought to be relied upon under the ECHR.