Friday 9 November 2012

UK failed to protect BNP Councillor in dismissal case, says ECtHR

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holding that it was wrong in principle and inconsistent with the purpose of the Race Relations Act 1976 (since repealed and re-enacted within the Equality Act 2010).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