Ruling on Dismissal by Reason of Political Opinion

The case of Redfearn v United Kingdom [2012] ECHR 47335/06 involves an employee who was dismissed from his employment by reason of his involvement in the British National Party, and had less than one-year’s qualifying service and so was unable to bring a claim for unfair dismissal. In this respect, the European Court of Human Rights (ECHR) has found a violation of the European Convention on Human Rights, Article 11 .

The court has found that it was incumbent on the respondent state (the UK) to take reasonable and appropriate measures to protect employees, including those with less than one year’s service, from dismissal on grounds of political opinion or affiliation. The ECHR has ruled that this is to be achieved either through:

-          the creation of a further exception to the one-year qualifying period; or
-          through a freestanding claim for unlawful discrimination on grounds of political opinion or affiliation.

In this case the ECHR gave weight to the fact the employer’s concerns were about prospective problems and not anything Mr Redfearn had done. The judges had sympathy for the individual, and didn’t feel the need to say anything about the British National Party (BNP), given they were a legal political party. They didn’t enter into debate about whether the political views were objectionable or not, only that they were lawful.

In this instance Mr Redfearn couldn’t claim unfair dismissal, as he had been in his post for less than a year, nor could he claim discrimination. In the UK there are certain statutory rights that allow an individual to bring a claim, even within the first year of service. Examples of statutory rights are:

• whistleblowers
• belonging to a trade union
• pregnancy
• maternity, and
• health and safety rules.

Employees can also bring a discrimination claim if it is related to a protected characteristic, such as age, race, sex or disability.

There is a currently a debate about the scope of the existing protection of religious and philosophical beliefs, and it is unclear if political beliefs come under that category. The Court has previously observed that beliefs must be compatible with human dignity and worthy of respect in a democratic society, therefore beliefs such as racism and homophobia may not be protected. Therefore many are thinking that a member of the BNP would have difficulties as far as the British courts are concerned because the courts would say their beliefs are objectionable. The ECHR, on the other hand, has taken a broad view and stated that as long as the political party is not illegal then employees should be protected.

The government has indicated it will seek an appeal to the Grand Chamber of the court on this ruling.

It is worth noting of course that some organisations, such as the police, have policies which ban members of the BNP, as do local authorities and trade unions.

Nick Barnett

Published on 16/11/2012