In Redfearn v the United Kingdom, the European Court of Human Rights held that the U.K. is in breach of Article 11 of the European Convention of Human Rights by failing to adequately protect employees dismissed on the grounds of their political opinions or affiliations.
Mr Redfearn worked as a bus driver for Serco Limited and was responsible for transporting children and adults with disabilities. Approximately 75% of Serco’s passengers and 35% of its workforce were Asian in origin. On 15 June 2004, Mr Redfearn was elected as a local councillor for the British National Party. Although Mr Redfearn had a clean employment record, due to concerns about the reactions of Serco’s customers and service users to his membership of the BNP, he was summarily dismissed.
As Mr Redfearn did not have sufficient qualifying service to bring an unfair dismissal claim, he brought a tribunal claim against Serco alleging that he had been unlawfully discriminated against on the grounds of race under the Race Relations Act 1976. The case went to the Court of Appeal, which found that there was no race discrimination – Mr Redfearn was not discriminated against on the grounds of his race but rather because he was a member of the BNP. The court found that membership of a political party or holding a particular political belief was not a “racial ground” and in any event, such considerations were not “protected categories”.
Mr Redfearn appealed to the ECHR, asserting that in choosing to become a member of the BNP, he was exercising his right to freedom of assembly and association as protected by Article 11 of the ECHR. The ECHR acknowledged that membership of a political party is a central tenet of democracy and should be protected even if the views expressed by that party offend, shock or disturb. Mr Redfearn went on to argue that in order for his Article 11 rights to be effective, the qualifying period for bringing an unfair dismissal claim (which at the time was one year) should not apply.
The ECHR held that while States have a wide discretion in their implementation of the ECHR in cases where there are sensitive social and political issues, any measures taken which have as their result a restriction on an individual’s rights under the ECHR must be proportionate and necessary. Whilst the one year qualifying period applying in the U.K. to unfair dismissal claims pursued (in the ECHR’s view) the legitimate aim of increasing employment, it deprived Mr Redfearn of his only right of recourse (in terms of U.K. legislation) against the interference with his rights. As such, the ECHR stated that the U.K. must take further steps to protect individuals’ rights under Article 11, whether through a further exception to the qualifying period for unfair dismissal or through a free-standing claim for unlawful discrimination on the grounds of political opinion.
The Government will now have to consider what steps to take to comply with the ruling. As well as considering the measures suggested by the ECHR, the Government could extend the definition of “religion or belief” (a protected category) in the Equality Act 2010 to include political beliefs, although it has previously commented this was not the intention of the Equality Act.
Another issue is how such protection will fit within U.K. discrimination law. As it stands, direct discrimination cannot be justified by an employer under U.K. law. However, the ECHR proposed a more discretionary approach, whereby discrimination can be justified so long as the measures taken pursue a legitimate aim and are proportionate. Such an approach would be inconsistent with other strands of discrimination law: for example, an employer could not justify direct discrimination on the ground of sex but it could justify direct discrimination on the ground of political opinion.
Although the judgment signals that a change in the law is required, it does not mean that an employee dismissed because of their political beliefs will automatically succeed in an unfair dismissal case. In such a situation, the employer will have the opportunity to show that the dismissal was justified – the key difference will be that the employee had the opportunity to bring the claim in the first place.