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29 November 2012

Dismissal on grounds of political affiliation

A recent decision of the European Court of Human Rights (ECHR) has ruled that UK law is deficient in failing to protect employees who are dismissed for their political persuasion.

The claimant in this case, Mr Redfearn, worked for Serco Ltd as a bus driver. The majority of his passengers were Asian.  Following his election as a local councillor for the British National Party (BNP), Mr Redfearn was summarily dismissed by Serco over fears that Mr Redfearn’s affiliation with the BNP would cause passenger anxiety and, ultimately, the loss of Serco’s contract with the Council.

Mr Redfearn (who had less than one year’s service) attempted to bring a claim against Serco for race discrimination under the Race Relations Act 1976 but was not successful.  The Court of Appeal dismissed his claim on the grounds that his dismissal was not related to his race but was motivated by his membership of a political party, which was not protected by anti-discrimination law.  Mr Redfearn therefore applied to the ECHR for a declaration that UK law is incompatible with Article 11 of the European Convention on Human Rights, which provides for the right to freedom of assembly and association.

Decision of the ECHR

The ECHR held that there had been a violation of Mr Redfearn’s Article 11 rights and that the protection afforded to Mr Redfearn under UK law was inadequate. Consequently, it was incumbent on the UK to take appropriate measures to protect employees, including those with less than one year’s service (such as Mr Redfearn), against dismissal on grounds of political persuasion.

In particular, the Court criticised Serco’s decision to dismiss Mr Redfearn summarily, without considering transferring him to a non-customer facing role.

Comment

It has been suggested that the UK may appeal this decision; however, if the decision is not overturned, the Government will be under pressure to enact protection for employees dismissed by reason of their political affiliation.  It should be noted that this judgment is not suggesting that the dismissal of an employee for political views should be automatically unfair, but that employees in such circumstances should be afforded a judicial platform in which they can challenge the fairness of the dismissal.

Under the provisions of the Employment Equality (Religion and Belief) Regulations 2004 (now within the Equality Act 2010), it has thus far been established that belief in a political philosophy or doctrine might qualify for protection as a ‘philosophical belief’, but that support for a political party would not. 

A copy of the ECHR judgment is available here.