13 November 2012

ECHR freedom of association violated by BNP councillor dismissal

Employers expect employees and clients from different racial backgrounds, sexual orientation and political beliefs and affiliations to work alongside one another in harmony. However where an employer dismisses an employee on the grounds that their views may amount to being a health and safety risk to their clientele, would that dismissal amount to being fair?

This was the issue looked at by the ECHR in the recent decision of Redfearn v United Kingdom the European Court of Human Rights.

Background

Mr Redfearn, a white British male, was employed by Serco to transport disabled passengers, mainly of Asian origin, in the Bradford area. His employers never received any complaints with Mr Redfearn's work, until June 2004 when he was elected as a councillor for the British National Party (BNP).  This caused complaints against him by the union and as a consequence he was dismissed by his employer on the grounds of health and safety. His employer argued that his status as a BNP councillor would cause their passengers high levels of anxiety.

As Mr Redfearn lacked the requisite qualifying period of employment to bring an unfair dismissal claim, he brought claims of direct and indirect race discrimination under the Race Relations Act 1976 (since repealed by the Equality Act 2010).

Earlier decisions  

The Employment Tribunal (ET) dismissed Mr Redfearn's claims of direct race discrimination on the basis that the dismissal had not been "on racial grounds"; it had been on health and safety grounds and was a proportionate means of achieving a legitimate aim.  The Court of Appeal upheld this original decision and all lawyers have until now been advising that an individual's political beliefs are not capable of protection under discrimination law.

The ECHR decision

Mr Redfearn lodged a claim in the ECHR, arguing that his dismissal had interfered with his rights of freedom of expression under Article 10 and freedom of association under Article 11.

The Court considered his complaints and held that national authorities must provide protection against dismissal by private employers which is motivated solely by an employee's membership or affiliation to a political party; or at least provide the means for an independent evaluation of the proportionality of such a dismissal in the light of all the circumstances of a given case.

The Court considered Mr Redfearn's case different to a restriction deemed necessary in a democratic society e.g. to protect the neutrality of civil servants. Mr Redfearn had a previous good record; he was dismissed before any issues arose with his work, with no consideration of non-customer facing work; and the likely difficulty of finding new employment given his age (56).  In this case, the Court considered that the consequences of his dismissal were capable of striking at the substance of his rights under Article 11.

Therefore Mr Redfearn has been given the opportunity to put his claim for unlawful discrimination on the ground of his political affiliation before an Employment Tribunal.

Conclusion

This is a complete reversal of the current authorities, and the advice on political beliefs in the workplace will have to be re-thought.  In addition, since Mr Redfearn's dismissal the equality legislation has re-defined a protected belief to include any 'philosophical belief' therefore an employee may now be able to argue (contrary to existing case law) that membership of a political party qualifies as a philosophical belief.

Employers wishing to dismiss any employees due to their political affiliations must act with caution and ensure they have considered all their options and evaluated the circumstances surrounding the case, including any other measures short of dismissal that they might be able to take.