by Laurie Anstis on November 8, 2012
In Redfearn v Serco  EWCA Civ 659, the Claimant was a bus driver working under a contract with Bradford City Council to transport disabled children and adults. He successfully stood as a candidate for the BNP in local elections, and shortly after his election he was summarily dismissed. His employer took the view that “his employment would present a risk to the health and safety of its employees and passengers”, as well as making the passengers and their carers anxious and potentially jeopardising their contract with the council.
The Claimant had less than a year’s service, and so could not bring a claim of unfair dismissal. Instead, he brought a claim under the the Race Relations Act 1976, on the basis that his dismissal had been “on racial grounds”. This claim failed in the employment tribunal, and the employment tribunal’s decision was upheld by the Court of Appeal.
Mr Redfearn then applied to the European Court of Human Rights, who held by a bare majority (4 to 3) that British law was incompatible with the article 11 right to freedom of association as those who did not have sufficient qualifying service to claim unfair dismissal had no right to complain that their dismissal was caused by their political beliefs. The majority held that (para 57):
“it was incumbent on the respondent State 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, either through the creation of a further exception to the one-year qualifying period or through a free-standing claim for unlawful discrimination on grounds of political opinion or affiliation.”
This is not a decision on whether or not the employer was right to dismiss Mr Redfearn. Instead, it was decision by the majority setting out what they saw to be a deficiency in British law.
The minority considered that unfair dismissal protection was adequate and within the “margin of appreciation” that was given to countries in complying with the principles of the European Convention on Human Rights.
It has been suggested that the UK government might seek to appeal this decision to the full Grand Chamber of the Court of Human Rights.
In an interesting article here, Martin Downs suggests that the argument of the case at first instance was flawed, and that an argument extending the definition of the protected characteristic of “religion or belief” might have helped to satisfy the Court of Human Rights. That point is developed by Harini Iyengar in her commentary here.