[authors: Katie Clark, David Dalgarno, Paul McGrath, and Sharon Tan]
The European Court of Human Rights (ECtHR), in Redfearn v United Kingdom  ECHR 1878, has held that employment law in the United Kingdom does not adequately protect individuals from dismissal as a result of their political beliefs or affiliations. The UK has been given two options to address this failing.
Mr Redfearn was employed by Serco Limited (Serco) as a driver. A local newspaper identified him as a British National Party (BNP) candidate in forthcoming local elections. At the time, the BNP only extended membership to white nationals and, according to its constitution, was “wholly opposed to any form of integration between British and non-European peoples”.
Following pressure from trade unions — a significant proportion of whose members were from ethnic minorities — and the subsequent election of Mr Redfearn as a local councillor, Serco summarily dismissed him solely on the basis of his political views. Serco said that it was concerned i) about the potential health and safety risks of having Mr Redfearn as a driver, as his presence would give rise to anxiety amongst passengers, many of whom were of Asian origin; and ii) that Mr Redfearn’s continued employment could jeopardise Serco’s reputation and possibly lead to it losing its contract with the local council.
Mr Redfearn had not been employed by Serco for long enough to be able to bring a claim for unfair dismissal. He claimed instead that his situation fell within the race discrimination framework, on the basis that the BNP was a whites-only party. That claim failed, and the UK courts found that discrimination on political grounds fell outside the protection of UK employment laws.
Mr Redfearn then took his complaint to the ECtHR, alleging that his right to “freedom of association” under the European Convention on Human Rights was not adequately protected under UK law.
The ECtHR agreed with him. It decided that the UK must provide employees with an avenue for redress in the event of dismissal or, presumably, detriment, on grounds of political belief (even beliefs likely to “shock, disturb or offend”) or affiliation with a particular political party. The ECtHR is not saying that Mr Redfearn’s dismissal should have been unlawful, but that the UK courts should have at least been able to consider whether Serco’s commercial interests should have prevailed over Mr Redfearn’s right to freedom of association.
What Does This Mean for Employers?
The ECtHR has suggested two ways in which the UK might choose to plug this gap:
Through a further exception to the length of service qualifying period for unfair dismissal claims (standing currently at two years) in cases where the dismissal is on the grounds of political opinion or affiliation.
Or by creating a new, freestanding claim for unlawful discrimination on grounds of political opinion or affiliation.
We will update you when the UK Government responds.
In the meantime, the ECtHR’s decision might embolden employees to develop relevant arguments. The prudent course, therefore, remains to avoid dismissing any employee in the UK specifically on the grounds of his or her political affiliations or beliefs. If faced with such an issue, employers should instead focus on the consequences of the employee’s affiliation or belief (such as actual customer complaints, breakdown in working relationships, etc,.) as the reason for any disciplinary action.
On a separate note, following its Consultation on Modern Workplaces last year, the UK Government has confirmed its intention to introduce more flexible parental leave laws, which are expected to come into effect in 2015, and also to extend to all employees the right to request flexible working, which is expected will come into effect by 2014. It is anticipated that the Government will launch fresh consultations on its specific proposals in the new year.