The European Court of Human Rights in the case of Redfearn v UK has ruled that UK law does not give adequate protection to employees, including BNP members, who are dismissed because of their political affiliations.
Mr Redfearn worked for Serco, a private company, as a driver from December 2003 until his dismissal on June 30 2004. He transported adults and children with physical disabilities within the Bradford area. The majority of his passengers were of Asian origin.
Whilst employed, Mr Redfearn was elected as a local councillor for the British National party (BNP). At the time, the BNP had a ‘whites only’ membership.
Following representations from various unions, he was summarily dismissed from his employment. His employer averred that as Bradford had a large Asian population, 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.
In its judgement the court said that there had been no problems with his work.
Mr Redfearn brought a claim to the Employment Tribunal for unfair dismissal on the basis of race discrimination. The Tribunal found otherwise and said that the discrimination was on the grounds of health and safety and was justified because it could make him a target for violent attacks, making for an unsafe bus service for passengers.
As Mr Redfearn had been employed for less than one year (which at the time was the qualifying period to bring a claim of unfair dismissal) and there was no automatic protection in UK law against unfair dismissal for freedom of association, Mr Redfearn was prevented from bringing a claim of unfair dismissal. As a result Mr Redfearn appealed the case to the European Court of Human Rights in Strasbourg, where a decision was reached that Mr Redfearn should not have been dismissed for his political association with the BNP.
In its judgement the European Court held that the lack of unfair dismissal protection interfered with his right to freedom of assembly under Article 11 of the European Convention of Human Rights.
The Judgement of the European Court of Human Rights makes it clear that employees who are dismissed for political association should not be required to satisfy the qualifying period for unfair dismissal claims.
The Government is likely to ask for the case to be referred to the Strasbourg Court’s Grand Chamber, to be re-examined by a full panel of 17 judges. It is not often that the Grand Chamber will agree to look again at an issue but it may well be so in this case given that the decision was reached by the lowest of majorities. Of the 7 judges on the panel that considered the case, only four felt that UK law needs to change. The other three disagreed, saying UK domestic law is fine as it is.
If the Grand Chamber does not over-rule the decision, UK law will have to change to give employees with short service the right to claim unfair dismissal if they have been dismissed because of their political affiliation, for example BNP membership.
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