The European Court of Human Rights says no!

In the case of Redfearn v the United Kingdom, the Court of Human Rights found that the UK had violated article 11 of the European Convention of Human Rights – the right to freedom of assembly and association – because it did not provide adequate protection for employees dismissed on the grounds of their political opinions or affiliations (Redfearn was a member of the BNP – British National Party).

Brief details of the case

Mr Redfearn was employed by a company called Serco Limited as a bus driver who transported mentally and physically disabled passengers on behalf of Bradford City Council.  The majority of passengers and a large number of his fellow employees were of Asian origin.

Soon after joining Serco, in 2004,  Mr Redfearn became a local councillor for the BNP.  Serco dismissed Mr Redfearn for ‘health and safety reasons’, even though he had been a ‘first class’ employee, due to their concerns about the racist agenda of the BNP. Serco believed there may be a danger to his own safety and were concerned about the possible reaction of its customers and the effect on its reputation. They did not consider whether he could be transferred to a non-customer-facing role.

Mr Redfearn could not claim unfair dismissal as he did not have 1 years service. He therefore made a complaint under the Race Relations Act 1976 (which was in place at the time) arguing that he had been treated less favourably on the grounds of race, because he was white.

The original Employment Tribunal rejected his claim, holding that the reason for any less favourable treatment had not been race but to protect the health and safety of Mr Redfearn and Serco’s passengers. Mr Redfearn appealed to the Employment Appeal Tribunal who agreed with his claim, but the UK’s Court of Appeal subsequently overturned the EAT’s decision, saying that Mr Redfearn’s complaint was of discrimination on political grounds which fell outside the scope of existing anti-discrimination legislation and that they accepted the company’s position that it would have taken the same decision to dismiss someone of similar political views whatever their race or colour.

Mr Redfearn was not allowed to appeal to the House of Lords and therefore lodged an application against the UK at the European Court of Human Rights, arguing that the UK had disproportionately interfered with his right to freedom of assembly and association under article 11 of the European Convention on Human Rights.

The Court of Human Rights said:

  • A claim for race discrimination was not an appropriate remedy
  • A claim for unfair dismissal would be an appropriate remedy, but was denied to him because he did not have the required length of service (1 year)
  • The UK made exceptions to the qualifying period to allow unfair dismissal claims in certain circumstances and the Court of Human Rights felt that it was reasonable for the UK to make a further exception in the case of dismissal for political opinion or affiliation
  • Or the UK could legislate for a free standing claim of unlawful discrimination on grounds of political opinion or affiliation

It is not yet clear how the UK will respond to this decision

  • They may ask the case to be referred to the Strasbourg Court’s grand-chamber to be re-examined by a full panel of 17 judges – as the decision made by the Court of Human Rights was reached by the smallest majority (7 judges were on the panel that considered the case but only 4 felt that UK law needed to change).
  • UK Domestic courts may feel compelled to interpret existing legislation to accommodate the decision, by, for example, holding that membership of a political party amounts to a ‘philosophical belief’ and that any unfair treatment on that basis would amount to unlawful ‘religion and belief’ discrimination under the Equality Act 2010.
  • Or, the Government may amend or enact legislation along the lines suggested by the Court of Human Rights, either by removing the qualifying period for unfair dismissal in such cases or by creating a new protected characteristic of ‘political belief’ under the Equality Act.

2013 update – the Government will  remove the qualifying period for unfair dismissal in cases of political opinions or affiliations on 25th June 2013.

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Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.