Dismissal on grounds of political affiliation - Strasbourg court says law must change

The European Court of Human Rights (ECHR) has ruled that the law of Great Britain does not give adequate protection to employees with short service who are dismissed because of their political affiliations.  Unless the government successfully challenges this ruling, domestic employment law will have to change. One option open to the government will be to allow unfair dismissal claims from those without the usual qualifying service (one year for those engaged before 6 April 2012, otherwise two years) where it is alleged that dismissal was because of membership of a political party.

Background

The case was brought by Mr Redfearn, who was dismissed in 2004 because of his affiliation with the BNP. Mr Redfearn worked for Serco Ltd as a driver, transporting people with disabilities within the Bradford area. Most of his passengers were Asian in origin. There had been no complaints about his work or his conduct at work. However, following revelations in a local newspaper about Mr Redfearn's political affiliation, a number of trade unions and employees complained to Serco about his continued employment. When elected as local councillor for the BNP he was summarily dismissed. He did not have enough service to bring an unfair dismissal claim so claimed race discrimination, a claim which was ultimately rejected by the Court of Appeal.

Having failed to obtain a remedy against his employer, Mr Redfearn launched a challenge against the law itself, arguing in the ECHR that his right to freedom to associate with others (set out in Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms) was violated by the lack of any legal protection against dismissal on account of his political affiliation.

ECHR ruling

By a majority of four judges to three, the ECHR upheld Mr Redfearn's complaint, saying:

'...the Court considers that it was incumbent on the respondent State 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 [for unfair dismissal] or through a free-standing claim for unlawful discrimination on grounds of political opinion or affiliation. As the United Kingdom legislation is deficient in this respect, the Court concludes that the facts of the present case give rise to a violation of Article 11 of the Convention.'

Effect on domestic law

The government is likely to ask for the case to be referred to the Strasbourg court's Grand Chamber, to be re-examined by a full panel of 17 judges. It is not often that the Grand Chamber will agree to look again at an issue but it may well do so in this case given that the decision was reached by the barest of majorities.

If the Grand Chamber does not overrule the decision, British employment law will have to change.  Rather than expand discrimination law to cover discrimination on grounds of political opinion (in line with the law of Northern Ireland), it is perhaps more likely that the government would give all employees, regardless of length of service, the right to claim unfair dismissal if they have been dismissed because of their political affiliation.

Until that change happens, however, private sector employees are unlikely to benefit from this ruling.  Although employment tribunals are required, as far as possible, to interpret the law in a way that is compatible with the Convention, case-law shows that they cannot go so far as to overturn fundamental features of legislation. The need for qualifying service to bring an unfair dismissal claim is likely to be seen as a fundamental feature of the Employment Rights Act 1996; so it is unlikely that tribunals will interpreted the Act so as to permit employees without qualifying service to bring claims of unfair dismissal on grounds of political affiliation/opinion. Having said that, there may well be scope for employees to argue that a dismissal on political grounds constitutes discrimination on grounds of belief, contrary to the Equality Act 2010.

The position in the public sector is somewhat different as public authorities have a legal duty to act in a way that is consistent with the Human Rights Convention. So unless the ruling is challenged, an employee dismissed because of their political affiliations could well make a claim against their employer in the civil courts under section 7 of the Human Rights Act 1998, even if the government does not amend the Employment Rights Act to allow claims of unfair dismissal in these circumstances.

It is important to bear in mind, however, that the Strasbourg court did not say it will never be appropriate to dismiss somebody because they are a member of a political party, just that employees should be able to have a court look into the decision to dismiss and decide whether it was reasonable. In cases like this much will depend on the nature of the individual's job and, in some cases, the area in which they work; an employer will be on firmer ground if membership of certain organisations is incompatible with the individual's job and there is a clear policy spelling this out. It is possible too that an organisation with an ethos that is demonstrably based on strong ideological views on social or political issues might be able to justify dismissal of someone whose political affiliations run contrary to that ethos.  However, a mere desire to avoid any adverse publicity or embarrassment that may result if an employee's political leanings are made public is less likely to stand up to scrutiny.

Redfearn v United Kingdom, 6 November 2012