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ECHR rules UK Government must take measures to protect employees from dismissal on the grounds of political opinions or affiliations

12th November, 2012

The European Court of Human Rights ruled recently in Redfearn v United Kingdom (Application no. 47335/06) that the UK Government must take measures to protect employees from dismissal on the grounds of political opinions or affiliations. This even extends to protection for individuals with extreme opinions which may “offend, shock or disturb”.

This case involved a bus driver, Mr Redfearn, who worked for the company Serco Limited. Mr Redfearn was a local councillor for the British National Party. When Serco became aware of his political activities, it dismissed him. The company said that 70-80% of Serco’s passengers and 35% of its workforce were of Asian ethnic origin. Although there was nothing to suggest that Mr Redfearn had behaved inappropriately at work, Serco was concerned about the reaction of its customers if they were to find out about his political opinions and activities.

Mr Redfearn was unable to bring a claim for unfair dismissal as he did not have the requisite continuous service. He instead brought a claim for unlawful discrimination; on the basis that his dismissal constituted unfavourable treatment on racial grounds (as he had been dismissed because of his views on race). Mr Redfearn further argued that since the BNP was a “whites-only” party, his dismissal also constituted indirect racial discrimination. Serco argued it was concerned about the effects on its passengers, the potential damage to reputation and relations and the harm which could result if he continued to be employed. Mr Redfearn’s claim for direct discrimination was dismissed by the Employment Tribunal; which ruled that his dismissal was on health and safety grounds rather than racially motivated. The Employment Tribunal also dismissed his claim for indirect discrimination as it held that the company’s actions constituted a proportionate means of achieving a legitimate aim, namely health and safety. Mr Redfearn’s claim was upheld by the Employment Appeal Tribunal; which held that the Tribunal had interpreted “racial grounds” too broadly and had failed to look at alternatives which would overcome the health and safety concerns. His claim was however rejected by the Court of Appeal, which restored the order of the Employment Tribunal.

Mr Redfearn then brought his case before the European Court of Human Rights, claiming that the UK had denied him his right to freedom of expression (Article 10) and his right to freedom of association and assembly (Article 11). By a 4:3 majority the European Court of Human Rights was in agreement with Mr Redfearn that there had been a breach of Article 11. The court ruled that political opinions and affiliations were fundamental to democracy; including views which some may find offensive or shocking in nature. The court held that this right needed to be balanced against the interests of the employer in each case and that the UK Government needed to take “reasonable and appropriate measures” to protect all employees from dismissal on the basis of their political opinions or affiliations (including those with less than one year’s service).

The Government will now need to consider how it will comply with this ruling and whether current legislation will need to be updated as a result. In Northern Ireland it is unlawful to discriminate against employees on the grounds of their political opinion and so it may be that we see a similar shift in the not too distant future.

For further information or advice on this development, please contact Claire Brook on [email protected] or 01244 405575.

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