In Redfearn v UK, the European Court of Human Rights (ECHR) has ruled on whether an employee who was an elected BNP councillor was entitled to protection from dismissal on the grounds of his political associations.
Arthur Redfearn was disabled and drove a bus for disabled people. He was rated as "first class employee" by his Asian supervisor. He worked for Serco, which had a contract to drive schoolchildren and others for Bradford City Council. When he was elected, the Council decided to dismiss him because they were concerned that his continued presence could be a health and safety risk if it provoked attacks on vehicles and/or could result in the Company losing the contract. He had not got the necessary qualifying service (one year, at that time) to make an unfair dismissal claim, so he made a claim for direct and indirect race discrimination, which failed in the Court of Appeal; there was no direct discrimination and any indirect discrimination was justified.
He then took his case to the ECHR, arguing that the lack of unfair dismissal protection meant that UK law did not adequately protect his rights of association and to freedom of expression. The ECHR upheld his claim: while the primary obligation is on the state (rather than private employers) to uphold human rights, it had an obligation to provide protection from dismissal on the grounds of belonging to a political party, including for those with less than a year’s service. Further, it commented that Article 11 protects not only “persons or associations whose views are favourably received or regarded as inoffensive or as a matter of indifference, but also those whose views offend, shock or disturb”.
The ECHR set out its reasoning as follows:
44 The Court has recognised that in certain circumstances an employer may lawfully place restrictions on the freedom of association of employees where it is deemed necessary in a democratic society, for example to protect the rights of others or to maintain the political neutrality of civil servants (see, for example, Ahmed and Others v. the United Kingdom, 2 September 1998)… In view of the nature of the BNP’s policies…the Court recognises the difficult position that Serco may have found itself in when the applicant’s candidature became public knowledge. In particular, it accepts that even in the absence of specific complaints from service users, the applicant’s membership of the BNP could have impacted upon Serco’s provision of services to Bradford City Council, especially as the majority of service users were vulnerable persons of Asian origin.
45 However, regard must also be had to the fact that the applicant was a “first-class employee” …and, prior to his political affiliation becoming public knowledge, no complaints had been made against him by service users or by his colleagues. Nevertheless, once he was elected as a local councillor for the BNP and complaints were received from unions and employees, he was summarily dismissed without any apparent consideration being given to the possibility of transferring him to a non-customer facing role. In this regard, the Court considers that the case can readily be distinguished from that of Stedman v. the United Kingdom…, in which the applicant was dismissed because she refused to work the hours required by the post. In particular, the Court is struck by the fact that these complaints…were in respect of prospective problems and not in respect of anything that the applicant had done or had failed to do in the actual exercise of his employment.
46 Moreover, although the applicant was working in a non-skilled post which did not appear to have required significant training or experience (compare, for example, Vogt v Germany, 26 September 1995, Series A no. 323, and Pay v. the United Kingdom, no. 32792/05, 16 September 2008), at the date of his dismissal he was fifty-six years old and it is therefore likely that he would have experienced considerable difficulty finding alternative employment.
47 Consequently, the Court accepts that the consequences of his dismissal were serious and capable of striking at the very substance of his rights under Article 11 of the Convention… The Court must therefore determine whether in the circumstances of the applicant’s case a fair balance was struck between the competing interests involved, namely the applicant’s Article 11 right and the risk, if any, that his continued employment posed for fellow employees and service users. It is also to be borne in mind that what the Court is called upon to do in this case is not to pass judgment on the policies or aims, obnoxious or otherwise, of the BNP at the relevant time (the BNP is, in any case, not a party to these proceedings), but solely to determine whether the applicant’s rights under Article 11 were breached in the particular circumstances of the instant case. In this connection it is also worth bearing in mind that, like the Front National-Nationaal Front in Féret v. Belgium (no. 15615/07, 16 July 2009) the BNP was not an illegal party under domestic law nor were its activities illegal (see, by way of contrast, Hizb Ut-Tahrir and Others v. Germany (dec.) no. 31098/08, 12 June 2012).
Two ways have so far been suggested to deal with this newly revealed lacuna. One is to introduce a new head of unfair dismissal without any qualifying period, covering dismissal on the ground of political opinion. The other is to extend the scope of “philosophical belief” to cover political views. Of the two, the former, although it requires new legislation, is the more limited – given that compensation for unfair dismissal is subject to a cap. It would also provide the opportunity of expressly excluding political views which advocate violence or illegal activities, akin to the provisions of the Equality Code, and require that philosophical beliefs must be worthy of respect in a democratic society and compatible with human dignity and not in conflict with the fundamental rights of others.