Redfearn v United Kingdom, ECtHR, 2012, Application no. 47335/06
On 6th November 2012,
the European Court of Human Rights (ECtHR) handed down judgment holding that the
United Kingdom had failed to take measures to ‘reasonably and appropriately’
protect nationals from dismissal on grounds relating to political opinion and
affiliation. The ECtHR held that national authorities had a duty to offer
protection even where the individual had failed to complete the requisite one
year’s service of employment under UK law, whereby a claim of unfair dismissal could
be brought before the employment tribunal.
In 2004, the appellant had been a
driver of a mini-bus service operating in the Bradford area, providing
transport for disabled passengers and their carers. He was employed by a
private company, Serco, which held the service contract with Bradford
Council. In the same year the appellant
had been elected a local councillor for the BNP, a political party which at the
time had a ‘whites only’ membership policy. Following representations from
various unions, he was summarily dismissed from his employment. His employer averred
that as Bradford had a large Asian demographic, his continued employment would have
created health and safety risks to passengers and their carers, caused them
anxiety, and potentially have jeopardised the company’s contractual
relationship with the Council.
The appellant brought a discrimination
claim in the employment tribunal on the grounds that his dismissal amounted to direct
discrimination based on suffering less favourable treatment on racial grounds,
and indirect discrimination based on the
BNP’s ‘whites only’ membership policy.
The appellant’s claim was rejected
by the employment tribunal, though upheld on appeal to the Employment Appeals
Tribunal. Serco then appealed to the Court of Appeal which reinstated that employment
tribunal’s original decision and refused leave to appeal to the House of Lords.
The appellant subsequently lodged a claim with the ECtHR.
In its 2006 decision the Court of
Appeal rejected the appellant’s submission that he had suffered direct racial
discrimination, holding that it was wrong in principle and inconsistent with
the purpose of the Race Relations Act 1976 (since repealed and re-enacted within
the Equality Act 2010). The Court held that the appellant had not been treated
less favourably on the grounds of him being white, rather it had been as a
result of his membership with BNP.
The Court also rejected the
appellant’s claim of indirect discrimination as he had been unable to show that
his employer had or would have applied a ‘provision, criterion or practice’
equality to persons not of the same race or colour. The Court was of the view
that discrimination on political grounds was outside the scope of
anti-discrimination laws. That the appellant had been treated less favourably,
contrary to the Human Rights Act 1998, was also rejected by the Court as the
employer was not a public authority.
Contrastingly, the ECtHR in
considering the appellant’s Article 11 rights of assembly held that UK national
authorities had failed in their duty to provide protection where dismissal was
solely for political reasons. The ECtHR stated that the minimum duty of care
was to at least have the matter independently evaluated. It considered that, in
the absence of judicial safeguards, a legal system “which allows dismissal from
employment solely on the basis of the employee’s membership of a political
party carries with it the potential for abuse”.
Whilst the ECtHR did not make a
finding as to whether the appellant had in fact been discriminated against, it
held that he should have been given an opportunity to argue this point before
the employment tribunal.
The majority of the Court noted
exceptions had previously been made to the UK’s requirement of one year’s
service of employment, and stated a similar exception must be made where
dismissals are on grounds relating to Article 11 rights of freedom of assembly
and association.
The minority, however, considered
it was a matter for Parliament to determine exceptions to the law.
Read the judgment here