In a judgment published last week the European Court of Human Rights has (albeit indirectly) provided fuel for further debate on what amounts to a "philosophical belief" capable of protection under the Equality Act 2010.
The decision in Redfearn v United Kingdom concerned the dismissal of a mini-bus driver after he was elected as a British National Party councillor. Mr Redfearn was employed by Serco Ltd, which provided transport services to public authorities for disabled people. Most of Serco's passengers were of Asian origin. There was no question over Mr Redfearn's performance in the course of his employment with the company, being nominated as a "first-class employee" by his supervisor. However, when Mr Redfearn was elected as a BNP councillor the company feared that his continued employment would present a risk to the health and safety of its passengers and employees which might jeopardise the company's reputation. It therefore took the decision to dismiss Mr Redfearn on 30 June 2004, at which point he had less that one year's service and could not claim unfair dismissal. Instead, Mr Redfearn claimed that his dismissal amounted to direct and indirect race discrimination, having been dismissed because he was white. The case reached the Court of Appeal, where Mr Redfearn's claim was rejected because it was, in fact, one of political discrimination which was not covered by discrimination laws.
Mr Redfearn was refused leave to appeal to the House of Lords so instead took his case to the European Court of Human Rights ("ECtHR"), claiming a breach of his Article 11 right to freedom of association and Article 10 right to freedom of expression under the European Convention on Human Rights ("ECHR"). The ECtHR found in Mr Redfearn's favour, noting that there had been a violation of his Article 11 right because he could not bring an unfair dismissal claim (due to his lack of the necessary qualifying service) and nor did the race discrimination legislation protect him from dismissal on grounds of his political opinion or affiliation. Therefore, the Article 11 breach here was the UK's failure to provide a remedy because UK law does not extend specific protection to employees dismissed on the grounds of their political beliefs or affiliation.
The Government now has two choices:
- create an exception to the requirement for a qualifying period for unfair dismissal to protect employees from dismissal on grounds of political opinion or affiliation; or
- create a stand-alone claim for unlawful discrimination on grounds of political affiliation.
The ECtHR's decision also makes clear that domestic courts must be able to balance the interests of an employer against an employee's Article 11 right to freedom of association, regardless of the employee's length of service. This means that once a remedy has been created in line with the above it may still be open to a Tribunal, applying this balance, to find that a dismissal is fair in these circumstances. Interestingly, the ECtHR suggested that the particular consequences of Mr Redfearn's dismissal (his previous good record, the difficulty of finding new employment age 56 and the employer's failure to consider non-customer-facing work) were capable of amounting to a breach of his Article 11 human right.
Crucially, the decision notes that Article 11 does not only apply to associations espousing inoffensive views but also to associations whose views "offend, shock or disturb".
Therefore whilst on the face of it this decision relates to an individual's right to freedom of association, it is likely to have much wider implications for employers. Employees are currently protected under the Equality Act 2010 from discrimination in the workplace on grounds of religion or belief (this protection was originally introduced in 2003). At the time of Mr Redfearn's dismissal, the definition of "belief" covered "religious belief or similar philosophical belief". The BIS Explanatory Guide at the time explained that "similar philosophical belief" did not include any philosophical or political belief unless it was similar to a religious belief. This goes some way to explaining why Mr Redfearn did not raise a claim of discrimination on grounds of religion or belief and, instead, his case progressed through the Tribunal system as a race discrimination claim.
However, if such a claim was raised today it would likely be pursued as a religion or belief discrimination claim. This is due to a change in the definition of "belief", effective in April 2007, to include "any religious or philosophical belief". Following this change, the EAT provided guidance on what amounts to a philosophical belief for the purposes of discrimination legislation. The belief must:
- be genuine;
- amount to more than just an opinion or viewpoint;
- relate to a weighty and substantial aspect of human life and behaviour;
- attain a certain level of cogency, seriousness, cohesion and importance; and
- be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
On this basis, the caselaw has found that a belief in climate change, a belief against fox-hunting and a belief in the "higher purpose" of public service broadcasting were philosophical beliefs protected under the discrimination legislation. However, a belief that people should wear a poppy in November; a belief that that 9/11 and 7/7 were "false flag" operations; and a claimant's Marxist/Trotskyist political beliefs did not attract this protection. Notably in the context of the Redfearn decision, in Baggs v Fudge an Employment Tribunal found that a claimant's membership of the BNP was not a philosophical belief because the BNP restricted its membership on racial grounds, but did not require members to hold a particular religious, philosophical or political belief. Similarly, in Finnon v Asda Stores Ltd, the Tribunal found that British Nationalism did not involve a clear belief system or a profound belief affecting the way of life or view of the world.
Following these two cases, the EAT decision in Grainger plc and others v Nicholson suggested that while "support of a political party" does not of itself amount to a philosophical belief, a belief in a political philosophy or doctrine, such as Socialism, Marxism or free-market Capitalism, might qualify.
Therefore, contrary to this existing caselaw, the ECtHR's decision in Redfearn may open a window for claimants to suggest that membership of a political party, such as the BNP, does amount to a philosophical belief capable of protection under the Equality Act 2010. At the very least, the decision challenges the guidance noted above such that a belief may be protected by discrimination legislation even where it offends, shocks or disturbs and, therefore, Redfearn could be used to suggest that it is not imperative that protected beliefs be "worthy of respect in a democratic society" or compatible with human dignity as previously thought.
Extending the definition of "philosophical belief" to include political beliefs would certainly be one way to rectify the breach of Article 11 of the ECHR identified in Redfearn and would create the free-standing discrimination claim suggested by the ECtHR. It remains to be seen whether the Government chooses to extend discrimination law in this way, rather than create a new exemption to the unfair dismissal qualifying period. Having just extended this period to two years on account of "reducing red tape" for business, I suspect the resolution here will be the former, given that employers may arguably already expect the incremental evolution of the definition of a "philosophical belief" given the caselaw over the years. There is certainly an interesting decision to be made here.