No, says Strasbourg. In a recent ruling by the European Court of Human Rights, a narrow majority held that UK law is in violation of Article 11 of the European Convention on Human Rights (ECHR) – relating to the freedom of assembly and association – by not affording protection to short-service employees dismissed on the grounds of their political beliefs or affiliations.
Mr Redfearn was employed as a driver to transport disabled passengers around Bradford, the majority of whom were of Asian origin. His employer, Serco Limited, had received complaints after a newspaper had published details about Mr Redfearn’s affiliation with the very right-wing and generally rather distasteful British National Party. When he was elected Local Councillor for the BNP, Mr Redfearn was dismissed over claimed concerns that because of his BNP links his employment might cause anxiety to passengers, he might present a health and safety risk, and his continued employment might jeopardise Serco’s reputation and its contract with the local Council. There was, however, no suggestion that Redfearn had actually created any health and safety issues or that the Council had actually threatened to pull the contract from Serco.
Mr Redfearn was unable to bring a claim for unfair dismissal as he did not have the requisite length of service. The Court of Appeal rejected his claim of race discrimination on the basis that he had been dismissed not because of his race but because of his membership of the BNP and unfavourable treatment on political grounds falls outside the scope of the religion-and-belief anti-discrimination laws. He could not bring a claim under the Human Rights Act as his employer was not a public authority, and he was denied leave to appeal to the House of Lords.
With both delicious irony and enormous hypocrisy (bearing in mind that the BNP manifesto for the 2010 general election included lengthy commentary on “the danger of the European Union to our sovereignty”), Mr Redfearn took his case to Europe to challenge the law alleging that his right under Article 10 (freedom of expression) and Article 11 of the ECHR had been violated through the absence of any rights of recourse for his dismissal.
The Court sympathised with Serco’s position but considered that the consequences of Redfearn’s dismissal were serious and went to the very heart of his rights under Article 11. It determined that a right to claim for unfair dismissal would have been the appropriate remedy in this case but that he had been denied this due to the qualifying period under UK law. After balancing and analysing the purpose and effect of that qualifying period, the Court held that there had been a breach of Article 11, stating that “it was incumbent on the respondent State 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”. It was suggested that such measures may be achieved through creating a free-standing claim for unlawful discrimination on grounds of political opinion or affiliation or, as is perhaps more likely, creating an additional exception to the qualifying period.
This case does not make it automatically unfair to dismiss an employee because of his political affiliation or belief, but suggests that employees should have the opportunity to challenge such a dismissal regardless of their length of service.
It is open to the UK to appeal but if the decision is not overturned we may see a change in the law to extend protection against dismissal on the grounds of political affiliation or belief to all employees, regardless of length of service, with the regrettable consequences that the less attractive your politics, the more it may pay to talk about them in the office.
