Redfearn v The United Kingdom HEJUD [2012] ECHR 1878
Published on: 09/11/2012
Issues Covered:
Discrimination
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Background
This case involved the dismissal of a driver by Serco Limited on the basis of his membership of the BNP. The claimant was employed by Serco to drive a minibus for disabled passengers, who were predominantly of Asian origin. The claimant was temporarily reassigned from his duties as a driver to deliver mail after it became known that he was standing as a candidate for the BNP in upcoming elections. 36When the claimant was elected as a local councillor in June 2004 Serco summarily dismissed him citing inter alia potential health and safety risks, as the claimant‟s employment would give rise to significant anxiety among passengers, and concerns that the claimant‟scontinued employment would jeopardise Serco‟s reputation and possibly lead to the loss of its contract with Bradford City Council.The Employment Rights Act 1996 requires one year‟s continuous service before an employee can bring an action for unfair dismissal, except where the dismissal was on grounds of pregnancy, sex, race or religion. As the claimant lacked the one year‟s continuous service normally required for unfair dismissal he sought to argue that his dismissal constituted discrimination on racial grounds – relying on the race of the passengers and employees of Serco who were of Asian origin to found the claim. He further submitted that his dismissal was indirect discrimination as the BNP was a “whites-only” party.The Employment Tribunal rejected both arguments and the claimant appealed to the EAT, who allowed the appeal giving a wide interpretation to “racial grounds”. The Court of Appeal then reversed the decision, stating that the claimant‟s dismissal was not on race grounds, but on the basis of his membership of a political party and further rejected any claim of indirect discrimination. The claimant was refused leave to appeal to the House of Lords and complained to the European Court of Human Rights (“ECtHR”) that his Article 10 right to freedom of expression and his Article 11 right to freedom of peaceful assembly and of association with others had been breached.The claimant argued that Article 11 imposed on the government a positive obligation to enact legislation which would have afforded him protection from termination on grounds of his involvement with the BNP, despite his lack of qualifying service.The ECtHR considered that Article 11 would be engaged if the UK had failed to secure the claimant‟s right to freedom of association under domestic law. Although a claim for unfair dismissal under the 1996 Act would be an appropriate domestic remedy for a person dismissed on account of his political beliefs, the one year qualifying period had deprived the claimant of the only means by which he could effectively challenge his dismissal. The ECtHR considered that Article 11 imposed on the United Kingdom a duty to take reasonable and appropriate measures to protect employees, including those with less than one year‟s service, from dismissal on grounds of political belief and a breach had occurred. http://bit.ly/STS8es
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The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.
This article is correct at 09/11/2012
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