Should political view and affiliation be protected characteristics within the Employment Rights Act 1996, thereby be included within the exceptions to the 12 month qualifying period for unfair dismissal claims?
Yes, said the European Court of Human Rights (“ECHR”).
The case concerned Mr Redfearn who was a driver’s escort for a company called Serco who had a large contract with the local authority namely Bradford City Council (“BCC”).
Serco dismissed Mr Redfearn pursuant to his affiliation with a political party, which Serco suggested hindered their contract with BCC due to the ethnicity of their customers.
During initial proceedings it was found that the majority of Mr Redfearn’s passengers were of Asian origin and were largely through the contract with BCC. However, there were no complaints in terms of Mr Redfearn’s work, quite the contrary; he was a noble worker having been nominated for the award of “first-class employee” and continually received good praise for the work he undertook. Yet his employer dismissed him for his political views. This article looks at whether it was unfair to dismiss on such grounds and whether such grounds should fall within the exceptions to the 12 month qualifying period for unfair dismissal claims.
The dismissal stemmed from identification of Mr Redfearn in a local newspaper article on 26 May 2004, in which it reported that Mr Redfearn was a candidate for election for the British National Party (“BNP”). It is important to note that at the relevant time the BNP was only open to white members and according to its constitution BNP said it was “wholly opposed to any form of integration between British and non-European peoples. It is therefore committed to stemming and reversing the tide of non-white immigration and to restoring, by legal changes, negotiation and consent, the overwhelmingly white makeup of the British population that existed in Britain prior to 1948.”
Mr Redfearn’s association with the BNP caused a stir in the members of BCC’s union, UNISON. Further this obviously sparked fears in Serco given the dynamics of the local area and the majority of ethnic passengers Mr Redfearn would carry and their contract with BCC. Unison responded to the association of Mr Redfearn and the BNP by writing to Serco stating ‘that many of its members found the applicant’s continued employment a “signiﬁcant cause for concern, bearing in mind the BNP’s overt and racist/fascist agenda.” The letter advised Serco that 70-80 percent of its customer base and 35 percent of its workforce were of Asian origin. UNISON asked that Serco take immediate action to ensure its members were not subjected to racial hatred.’
On 15 June 2004, Mr Redfearn was elected as a local councillor for the BNP and just over 2 weeks later Serco summarily dismissed him from his position. Serco suggested in their dismissal letter that there were ‘potential health and safety risks as the applicant’s continued employment would give rise to considerable anxiety among passengers and their carers. It also expressed concern that the applicant’s continued employment could jeopardise its reputation and possibly lead to the loss of its contract with Bradford City Council.’
Mr Redfearn argued that he was unfairly dismissed and discriminated against, as he had been dismissed on grounds of his political views alone as oppose to any wrongdoing on his behalf. The problem Mr Redfearn faced at that time was that he had not completed a continuous 12 months qualifying period of employment with Serco, which entitled him to such course of action under the unfair dismissal legislation. Therefore on first glance it appeared that Mr Redfearn’s claim was barred by statute namely, the Employment Rights Act 1996. Nevertheless he sought to bring a claim pursuant to the exception within the act of racial discrimination, both direct and indirect.
‘The Employment Tribunal dismissed the claim of direct discrimination as it was satisﬁed that if any discrimination existed against the claimant it was not on racial grounds but rather on health and safety grounds. The Tribunal also dismissed the claim of indirect discrimination on the ground that the applicant’s dismissal was a proportionate means of achieving a legitimate aim, namely the maintenance of health and safety.’
Mr Redfearn appealed and the Employment Appeal Tribunal (“EAT”) reversed the decision and held that the Tribunal had erred in its interpretation of the phrase “on racial grounds”. The EAT stated that the Tribunal had failed to interpret its meaning loosely. The EAT further stated that the Tribunal had not indicated how it had come to the view that Mr Redfearn’s dismissal was a proportionate means of achieving the aim of ensuring health and safety because there had been no consideration of any alternatives to dismissal such as reallocation of role etc.
The decision was then reversed by the Court of Appeal who found that the applicant’s contention he had been subjected to direct race discrimination was ‘wrong in principle’ and was ‘inconsistent’ with the purpose of the employment legislation.
The European Court of Human Rights
Mr Redfearn was refused leave to appeal to the House of Lords and therefore submitted a claim to the ECHR. Mr Redfearn suggested that his Human Rights had been violated pursuant to Article 10, Freedom of Expression and Article 11, Freedom of Peaceful Assembly and Association.
The ECHR found in favour of Mr Redfearn and held that his Article 11 right had been violated.
The ECHR stated that ‘although the essential object of Article 11 is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected, the national authorities may in certain circumstances be obliged to intervene in the relationships between private individuals by taking reasonable and appropriate measures to secure the effective enjoyment of the right to freedom of association’. The court by enlarge held that there was a positive obligation on authorities to ensure that no individual’s dismissal was purely motivated by association to a certain political party.
The ECHR embarked on a balancing exercise in this case and held on the one hand were the concerns Serco and BCC had by the association, yet on the other hand Mr Redfearn was a “ﬁrst-class employee” and prior to his afﬁliation with the BNP and the same becoming public knowledge, there were no complaints made against him by service users or by his colleagues which would therefore suggest there was no evidence of a threat to service users discrediting the health and safety contentions. In the balancing exercise the ECHR considered that the BNP was not an illegal party and therefore insinuated there was no unlawfulness in being a member. The court also made reference to a countries wide margin of appreciation, and the benefit of a countries ability to apply domestic law. Further the court questioned whether the 12 month period was reasonable with reference to political views and whether the domestic courts offered protection against unfair dismissal on grounds of such views when exercising their margins. The ECHR found that albeit the 12-month qualifying period was reasonable in general, in this matter it was not applied equally to all dismissed employees and therefore was discriminatory on grounds of political affiliation, as no further protection was afforded to such situations.
Consequently, the ECHR suggested that it was inescapable of the respondent State to take suitable measures to protect employees, including those without the qualifying period, from dismissal on grounds of political opinion or afﬁliation alone. The ECHR suggested that the UK could safeguard such rights ‘either through the creation of a further exception to the one-year qualifying period or through a free-standing claim for unlawful discrimination on grounds of political opinion or afﬁliation’. The court concluded the lack of such protection was a violation of Mr Redfearn’s Article 11 Human Right, Freedom of Association.
Based on the judgment it would therefore appear that political views should be caught in the exception to the qualifying period in the unfair dismissal legislation along with pregnancy, race, sex and religion.
REDFEARN v. THE UNITED KINGDOM 47335/06 – HEJUD  ECHR 1878 (06 November 2012)