The European Court of Human Rights in Strasbourg ruled yesterday that a bus driver’s dismissal for membership of the BNP, and the UK’s failure to provide adequate legislative protection for him, breached his right to freedom of association. The Court concluded that this is a right which must apply not only to people or associations whose views are favourably received, but also to those whose views “offend, shock or disturb”.
In 2006 the Court of Appeal had confirmed that Arthur Redfearn, formerly a bus driver with Serco Limited, was not entitled to rely on UK race discrimination legislation after he was dismissed when it became public knowledge he was a member of the BNP and had been elected as a BNP councillor.
Mr Redfearn was employed by Serco who provided transport to local authorities. Whilst accepting that Mr Redfearn’s membership of the BNP had not affected the way he conducted himself at work, Serco had expressed concerns that Mr Redfearn’s continued employment once his membership of the BNP became known could lead to difficulties with other employees, difficulties with the trade unions, cause anxiety for its passengers (the majority of whom were vulnerable adults and children of Asian origin) and damage Serco’s reputation.
The Strasbourg Court split by a 4:3 majority in Mr Redfearn’s favour considered that his complaint was more appropriately analysed under the right to freedom of association rather than under the right to freedom of expression, although the former had to be read in the light of the latter. The Court recognised the difficult position Serco may have found itself in; however, it seems to have been swayed by the fact that Serco’s decision was based on complaints about prospective problems. In addition the Court noted that Serco did not consider any alternatives to summary dismissal, that Mr Redfearn had previously been regarded as a “first class employee” and that he would have had difficulty finding alternative employment given his age and skills.
The Court concluded that it was incumbent on the UK to take reasonable and appropriate measures to protect employees with less than one year’s service from dismissal on grounds of political opinion or affiliation, and that UK legislation was deficient in this respect.
So, where does this leave us? Since Mr Redfearn’s dismissal the law has changed in relation to the qualifying period for unfair dismissal as well as in relation to discrimination and equality. In our view it is unlikely that the UK will remove the qualifying period for unfair dismissals, which has increased from one to two years. Faced with similar circumstances, employers should expect claims of direct and indirect race discrimination, as well as direct and indirect discrimination for religion or belief. Case law has widened what amounts to philosophical belief to include a belief with sufficient cogency, seriousness and importance worthy of respect in a democratic society. It is likely either that the UK courts will rely on this widened interpretation to extend philosophical beliefs to cover political beliefs or Parliament will seek to extend the Equality Act 2010 specifically to cover political beliefs.
On a poor day for the UK in the Strasbourg Court this was one of three cases in which the UK was found to have violated individuals’ rights under the European Convention on Human Rights.