BNP COUNCILLOR’S DISMISSAL VIOLATED ECHR FREEDOM OF ASSOCIATION.

Summary: The European Court of Human Rights has criticised the failure of UK law to protect those with less than one year’s service where they are dismissed because of their membership to a political party.

Facts:

• Mr Redfearn worked for Serco from 5 December 2003 until his dismissal on 30 June 2004. He was responsible for transporting children and adults with physical and/or mental disabilities. The majority of his passengers were Asian in origin.

• On 26 May 2004, Mr Redfearn was identified within a local newspaper as a candidate for the BNP.

• On the same day as the newspaper article was published, Serco temporarily assigned him to deliver mail to local council offices.

• Serco came under pressure from its unions who considered the BNP’s agenda “overt and racist/fascist.”

• Mr Redfearn was successful in securing the position as BNP local councillor. Serco summarily dismissed him on the grounds of:

1. potential health and safety risks i.e., his continued employment would give rise to considerable anxiety among the passengers and their carers; and
2. the potential to jeopardise Serco’s reputation which could possibly lead to the loss of its contract with Bradford City Council.

• At the time of his dismissal, Mr Redfearn had less than one year’s service with Serco and as a result, was unable to bring a claim for unfair dismissal.

• As an alternative, Mr Redfearn lodged claims for direct and indirect race discrimination. His claims were not upheld.

• Mr Redfearn went on to apply to the European Court of Human Rights (ECtHR) for a declaration that UK law was incompatible with the European Convention on Human Rights, including article 10 (freedom of expression) and article 11 (freedom of association).

• The ECtHR found that it was incumbent on the UK to take reasonable and appropriate measures to protect employees, including those with less than one year’s service, from dismissal on grounds of political opinion or affiliation, either through the creation of a further exception to the one-year qualifying period or through a free-standing claim for unlawful dismissal on grounds of political opinion or affiliation.

The Impact of this Decision on Employers:

The ECtHR has criticised the failure of UK law to protect those with less than one year’s service where they are dismissed because of their membership to a political party.

Arguably, the position has now been exacerbated by virtue of the fact that employees now need to have accrued 2 years’ continuous service to enable them to bring a claim for unfair dismissal. On the other hand, it could be argued that an employee in a similar position to Mr Redfearn would now be protected by the Equality Act 2010 if membership of a political party could fall within this Act’s definition of “philosophical belief”.

In the meantime and before (and if) any steps are taken to change the position under UK Law, the impact of the ECtHR’s decision for employers is as follows:

• Private sector – Employees in the private sector will not be directly affected by this ruling. Employees in the same or a similar position to Mr Redfearn may, however, be encouraged to bring claims under the religion or belief provisions of the EQA. Individuals do not have to satisfy any length of service requirement to bring such a claim.

• Public sector – public authorities must act in a way that is compatible with the Convention rights and so public sector employees who are dismissed for membership of a political party could now bring civil claims under the Human Rights Act 1998 citing Article 11, even if they have no unfair dismissal rights.

In the event that you are contemplating changing an employee’s role, disciplining or dismissing the employee for reasons connected with membership to a political party, we would recommend that you seek legal advice and support before taking steps to do so given that this is a complicated and untested area of Law.

Rachael Jessop, Solicitor.

Contact Information:

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.