This was the effective decision of the European Court of Human Rights in the case of Redfearn –v- United Kingdom (judgment given on 6 November 2012).
Mr Redfearn had worked for a private company as a driver transporting children and adults with physical and/or mental disabilities within the Bradford area. The majority of his passengers were of Asian origin.
Whilst employed, Mr Redfearn was elected as a local councillor for the British National Party (BNP). At the time the BNP was a ‘white national’ party which was “wholly opposed to any form of integration between British and non-European peoples.” After receiving complaints from various unions, Mr Redfearn was summarily dismissed by his employer on the basis that his continued employment would give rise to considerable anxiety among passengers and their carers, and that his continued employment could jeopardise its reputation and possibly lead to the loss of its contract with Bradford City Council. It is however noteworthy that his employer had not received any complaints about his actual work and he had previously been nominated for the award of “first-class employee”.
As Mr Redfearn had been employed for less than one year (which at the time was the qualifying period to bring a claim of unfair dismissal) and there was no automatic protection in UK law against unfair dismissal for freedom of association, Mr Redfearn was prevented from bringing a claim of unfair dismissal. As a result, Mr Redfearn took the matter to the European Court of Human Rights to consider whether his inability to bring a claim was contrary to the European Convention of Human Rights.
The European Court agreed that the UK Government’s failure to enact legislation, which would have afforded Mr Redfearn protection against dismissal on the grounds of his political opinion or affiliation, violated Article 11 of the Convention. Article 11 sets out the right to freedom of association and this right is applicable even to those whose views “offend, shock or disturb”.
The European Court has recommended that the UK should take reasonable and appropriate measures to protect employees from dismissal on grounds of political opinion or affiliation. This could be achieved either through the creation of a further exception to the qualifying period or through a free-standing claim for unlawful discrimination on grounds of political opinion or affiliation.