A judgment from the European Court of Human Rights in the case of Redfearn v The United Kingdom (2012) means it is now likely that political views held by individuals should be treated as ‘philosophical beliefs’ and therefore granted protection from discrimination under the Equality Act 2010.
Facts of the case
Mr Redfearn was an employed by Serco on 5 December 2003 as a driver. His job entailed providing services to local authorities in transporting children and adults with physical or mental disabilities in the Bradford area. On 15 June 2004, Mr Redfearn was elected as a local councillor for the BNP. Serco had become aware that he was a candidate prior to his election from newspaper reports and a trade union had sent a letter to Serco indicating their concern about Mr Redfearn because of the BNP’s “overt racist/fascist agenda”. Serco summarily dismissed Mr Redfearn on 30 June 2004 because of his involvement with the BNP. Serco provided specific reasons for his dismissal as potential health and safety risks and concern that he would jeopardise the company’s reputation and possibly lead to the loss of its contracts with local authorities. It should also be noted that a number of clients that Mr Redfearn transported around were of Asian origin.
Mr Redfearn lacked the required amount of service to bring a claim for unfair dismissal (which at that time was 51 weeks). However, he lodged a claim in the Employment Tribunal for both direct and indirect race discrimination. Discrimination claims do not require any period of service. The Employment Tribunal dismissed all of Mr Redfearn’s claims. He appealed to the Employment Appeal Tribunal (EAT) and his appeal was upheld. Serco then appealed the decision of the EAT to the Court of Appeal. Serco’s appeal was upheld and the original decision of the Employment Tribunal was restored. The Court of Appeal did not allow Mr Redfearn to appeal to the House of Lords.
Mr Redfearn made an application to the European Court of Human Rights on 16 November 2006. He complained of a violation of his rights under Articles 10 (right to freedom of expression) and Article 11 (a right to freedom of assembly and association) of the Convention of Human Rights. He argued that the UK Government had a positive obligation under Article 11 to enact legislation which would have afforded him protection from the termination of his employment by Serco on the ground of his involvement with the BNP. As he lacked the ability to claim unfair dismissal he said his rights, particularly to freedom of assembly and association, were denied to him.
Decision of the European Court of Human Rights
The European Court of Human Rights held that the lack of unfair dismissal protection did interfere with Mr Redfearn’s right under Article 11. The Court felt that the absence of safeguards in the UK legal system which allows dismissal solely on account of the employee’s membership of a political party carried the potential for abuse. The Court was sympathetic to the difficult position Serco was placed in, but stressed that Article 11 applies regardless of whether the political views held are offensive or inoffensive. The Court felt what should be decisive in such cases is that the domestic courts or tribunals be allowed to decide whether or not, in the circumstances of a particular case, the interests of the employer should prevail over Article 11 rights, regardless of the length of the period of employment of the employee.
The Court felt the failure could be remedied by the UK Government allowing another exception to the qualifying period for an unfair dismissal claim, or through a free-standing claim for unlawful discrimination on grounds of political opinion or affiliation. However, the protection could already be in place. The Equality Act 2010 provides protection from discrimination for employees who hold ‘philosophical beliefs’. Please see our article on what is a philosophical belief here. As a consequence of the decision in this case, it is likely that political views should now be treated as philosophical beliefs. This is despite a spokesperson for the Government Equalities Office UK speaking in March 2010 to the Telegraph saying that this was not the intended position under the Equality Act 2010.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).