UK Must Protect Against Dismissal on Grounds of Political Beliefs
The European Court of Human Rights (ECHR) has ruled that UK law is incompatible with the European Convention on Human Rights as it does not protect employees dismissed on grounds of their political beliefs or affiliation.
R was employed by Serco as a bus driver driving disabled adults who were mainly of Asian origin. An article appeared in a local newspaper identifying R as a candidate for the British National Party (BNP) in local elections. Serco dismissed S on grounds that he presented a risk to the health and safety of its employees and passengers, caused its passengers anxiety, jeopardised Serco’s reputation and risked losing them its transport contract with the Council.
R did not have one year’s service and so could not claim unfair dismissal. Instead he claimed race discrimination, arguing that he had been dismissed because he was white. His claim was rejected by the Court of Appeal which held that he was not dismissed because he was white but because he was a member of the BNP. His complaint was one of discrimination on political grounds which was not covered by discrimination laws.
In Redfearn v United Kingdom, R sought a declaration from the ECHR that UK law is incompatible with the Convention (his Article 11 right to freedom of association) and that the Government had an obligation to enact legislation which would protect him from dismissal on grounds of his political affiliation. The ECHR agreed. Although the unfair dismissal regime provides adequate protection for someone dismissed on grounds of political beliefs and affiliations, the fact a qualifying period of service is needed before being able to bring a claim meant that R’s Article 11 rights were not safeguarded. Article 11 applied to all associations and organisations, whether or not they are generally regarded to hold offensive, shocking or disturbing views.
The Court said that protection could be achieved by creating a further exception to the unfair dismissal qualifying period for dismissal on grounds of political opinion or affiliation, or a free-standing claim for discrimination on those grounds.
It is open to the government to appeal this decision but if it does not do so, or any appeal fails, it will have to enact legislation protecting employees from dismissal because of their membership of a political party.
Of course, employees who already have the necessary service to bring a claim for unfair dismissal are already able to claim that a dismissal on grounds of political belief is unfair. The ECHR was not suggesting that such a dismissal will be automatically unfair. It will be open to an employer to defend such a claim on the basis it has a potentially fair reason for dismissal – some other substantial reason. Whether the dismissal will be found to be fair will depend on the facts of each case.
It remains to be seen whether employment tribunals will be tempted to interpret the religion and belief provisions of the Equality Act so as to give protection for political beliefs.
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