By Michael Nadin - Associate Solicitor The Coronavirus Job Retention Scheme (CJRS) was originally due…
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The European Court of Human Rights (ECHR) has ruled that United Kingdom legislation is deficient as it does not protect employees, including those with less than one year’s service, from dismissal on grounds of political opinion or affiliation (Redfearn v United Kingdom).
In 2006, the Court of Appeal ruled that Arthur Redfearn, a bus driver who was also a member of the British National Party (BNP), had not been dismissed on racial grounds.
Mr Redfearn worked for Serco Ltd. as a driver and escort for disabled adults and children in the Bradford area. There had been no complaints about his work or his conduct but in May 2004 an article appeared in a local newspaper identifying him as a candidate for the BNP in forthcoming elections. As a result, the union UNISON wrote to Serco expressing concern, bearing in mind the BNP’s political agenda. 70 to 80 per cent of Serco’s local customers were Asian as was 35 per cent of its workforce. The company also received representations from the GMB union and from employees concerned for their personal safety and that of the company’s property in the event of any retaliatory action on account of Mr Redfearn’s views.
On 15 June 2004, Mr Redfearn was duly elected as a local councillor for the BNP and was dismissed by Serco on 30 June as the company feared that his continued employment would present a health and safety risk to its employees and passengers. It was also concerned that its reputation might suffer as a result of its association with the BNP, with the possible loss of its contract with the council.
Mr Redfearn was not entitled to bring a claim of unfair dismissal because he had not been employed for the requisite 12 months, so he instead brought a claim of discrimination contrary to the Race Relations Act 1976 (RRA).
The Employment Tribunal rejected his claim but his appeal to the Employment Appeal Tribunal (EAT) was successful. The Court of Appeal subsequently overturned the EAT’s decision.
In the Court’s view, the decision to dismiss Mr Redfearn included racial considerations, but it did not follow automatically that he had been dismissed on racial grounds. The Court held that he was treated less favourably not because he was white but because of a particular ‘non-racial characteristic’ shared by him with a tiny proportion of the white population, namely membership of a party such as the BNP. The dividing line of colour or race was not made by Serco but by the BNP, which at the time defined its own membership in terms of colour or race. Properly analysed, Mr Redfearn’s complaint was one of discrimination on political grounds, which falls outside the anti-discrimination laws.
Lord Justice Mummery held that to allow Mr Redfearn’s claim would turn the policy of the race relations legislation upside down. It would mean that any less favourable treatment brought about because of concern about the racist views or conduct of a person in a multi-ethnic workplace would constitute race discrimination, which would be at odds with the aim of the RRA.
Undeterred, however, Mr Redfearn took his case to the ECHR, complaining of a violation of his rights under the European Convention on Human Rights.
The ECHR has now ruled that Mr Redfearn’s dismissal did disproportionately interfere with his right to freedom of assembly and association pursuant to Article 11 of the Convention. Although the matters about which he complained did not involve direct intervention by the State, the ECHR found that there is a positive obligation on the authorities to provide protection against dismissal where the dismissal is motivated solely by the fact that an employee belongs to a particular political party, or at least to provide the means whereby an independent evaluation of the proportionality of such a dismissal can be made, taking into account the individual circumstances of a given case.
How the Government will respond to this decision is as yet unclear. Meanwhile, if you are worried that an employee’s political beliefs could have an adverse effect on your business, contact Gary Lee for advice.