Employment Eye - Political opinion as reason to dismiss

Employment Eye - Political opinion as reason to dismiss

29/11/2012

Anne Palmer

Anne Palmer

Senior Associate

In relation to an employee who was dismissed because he was elected a local councilor for the BNP, the European Court of Human Rights has decided that the UK Government has broken the European Convention on Human Rights, because of a lack of protection under UK law for employees dismissed on the grounds of their political beliefs or affiliation. This case is important for both private and public sector employers; but has a more immediate impact on public sector employers, because of the potential for public sector employees to bring claims under the Human Rights Act. Anne Palmer reports.

The background

Under UK law, there is no specific protection against dismissal on grounds of political affiliation or belief. Article 11 of the European Convention on Human Rights (ECHR) provides a right to freedom to peaceful assembly and ‘freedom of association’ with others. As regards employment law, Article 11 is mainly relevant to rights around trade unions, but it can apply to all types of association, including political parties. Article 11 is often considered together with Article 10 of the ECHR (freedom of expression), which includes the right to hold and express opinions as well as to receive and impart ideas to others. Under section 6(1) of the Human Rights Act 1998, public authorities must act in a way that is compatible with Convention rights. In Redfearn v United Kingdom the European Court of Human Rights considered whether the UK government had an obligation under Article 11 of the ECHR to enact legislation which would protect employees from being dismissed on the grounds of political affiliation.

The facts

Mr Redfearn (who is white) was employed by Serco as a driver in a business which provided transport services for public authorities. Seventy-five to eighty per cent of Serco's passengers were of Asian origin, as were thirty per cent of its workforce.

When Mr Redfearn was elected as a local councillor for the BNP he was summarily dismissed by Serco, at which point he had less than one year's service, and so was not eligible to bring an unfair dismissal claim.

Mr Redfearn brought a claim for race discrimination under the Race Relations Act 1976. His claim was rejected by the Court of Appeal, which held that discrimination law should not be used to protect employees from unfavourable treatment for acting in a way that is racially discriminatory. Mr Redfearn's argument that he was dismissed because he was white, and that this was therefore ‘on racial grounds’, was flawed because the dismissal was motivated by his membership of the BNP, rather than the fact that he was white.

Mr Redfearn argued that less favourable treatment as a result of membership of a political party was an interference with various articles of the ECHR, including articles 10 and 11.  This claim failed because Serco is a private sector employer, and, therefore, the Human Rights Act is not directly applicable to them.

Not to be deterred, Mr Redfearn then applied to the European Court of Human Rights (ECtHR) for a declaration that UK law is incompatible with the ECHR. He argued that the Government had a positive obligation under Article 11 to enact legislation which afforded him protection from the termination of his employment on the ground of his political affiliation, and that this right should be available from the first day of employment.

The decision

The ECtHR found that there had been a violation of Mr Redfearn's Article 11 rights, and that UK law should provide protection against dismissal on the grounds of political opinion or affiliation.

The ECtHR recognised the difficult position that Serco may have found itself in when Mr Redfearn's candidature became public knowledge, and accepted that his membership of the BNP could have impacted upon its provision of services to the local council.

However, the ECtHR was critical of the way in which Serco handled Mr Redfearn’s dismissal, and had regard to the following:

  • Mr Redfearn had been recognised by his manager (who was Asian) as a 'first-class employee'
  • no complaints had previously be made against him
  • the reasons for dismissal related to prospective problems rather than actual problems
  • the BNP was not an illegal party under domestic law nor were its activities illegal
  • he was summarily dismissed without any apparent consideration being given to the possibility of transferring him to a non-customer facing role
  • at the date of his dismissal he was fifty-six years old and it was considered, therefore, that he may have difficulty finding alternative employment.

The ECtHR went on to say that, although the UK’s current unfair dismissal regime was, in theory, adequate to protect an employee who was dismissed for his political beliefs or affiliations, the imposition of a qualifying period (which at the time was one year) meant that the UK had not taken reasonable and appropriate steps to safeguard Mr Redfearn's rights under Article 11.

The ECtHR said that protection under Article 11 applies across the board, to all associations and organisations; regardless of whether they are generally regarded to hold offensive, shocking or disturbing views.

Consequently, the ECtHR found that there had been a violation of Article 11. The UK therefore had to take measures to protect all employees, including those with less than one year's service, from dismissal on the grounds of political opinion or affiliation. This could either be achieved either through:

  • the creation of a further exception to the qualifying period for unfair dismissal, or
  • the creation of a free-standing claim for unlawful discrimination on the grounds of political opinion or affiliation.

What does this mean for me?

Both private and public sector employers may now be at an increased risk of a claim under the ‘religious or philosophical belief’ provisions of the Equality Act 2010. Previous case law (pre-Equality Act) suggested that political views that are ‘vile’ or ‘obnoxious’ should not benefit from anti-discrimination provisions. However, courts and tribunals may consider such claims in the light of the decision in Redfearn and take a liberal approach to the interpretation of 'philosophical belief', under the Equality Act, to include affiliation with political parties. This would not necessarily be limited to circumstances where the employee is an elected representative of a party, and could include membership of a party or belief in particular political ideologies and general political movements, such as ‘socialism’.

Notwithstanding this, public sector employers will be caught by the ECtHR interpretation of the ECHR with immediate effect: employees are entitled to protection under Article 11, regardless of whether their political views may be repugnant. This is because of the effect of section 6 of the Human Rights Act, as outlined above, under ‘Background’.

It is possible that the Government may legislate to create a further exception to the qualifying period for unfair dismissal, to close the ‘gap’ in UK employment law that has been identified by the ECtHR. However, even if the law were to be changed in this way, the right would only exist to bring a claim for unfair dismissal; not that a dismissal for political affiliation would be automatically unfair. It may well be that any dismissal would be for the potentially fair reason of ‘some other substantial reason’ in section 98(1)(b) of the Employment Rights Act 1996.

This is an extremely complex area of law and, if you think you may be at risk of a claim relating to political belief, you should seek specific legal advice. However, in the light of this decision, and in order to minimise the risk of a claim arising, you may wish to consider the following action points.

  • Review your policies and procedures to ensure that they cover discrimination on the basis of political belief. This may involve a difficult balancing act between protecting employees and third parties, and maintaining political equality.
  • Draw this development to the attention of managers and / or include it your equal opportunities training.
  • In the light of the ECtHR’s criticisms of the Council’s conduct towards Mr Redfearn, consider carefully any proposed disciplinary action which could be on the basis of a political belief. You may wish to consider, for example
    • the employee’s previous conduct; 
    • whether there are steps short of disciplinary action that may be taken – for example, redeployment;
    • whether the action is anticipatory or whether there have been actual complaints about the employee in question;
    • the impact of the proposed action on the employee (for example, the prospect of them obtaining alternative employment).

Finally, we understand that the UK intends to appeal the decision, and the appeal could take from six months to a year. Therefore, it could be some time until the impact of this decision is fully understood.

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