In the summer of 2006, the Court of Appeal confirmed that Serco had acted lawfully in dismissing one of its mini-bus drivers, Arthur Redfearn, following his election onto the local council on behalf of the British National Party.
He argued that the UK government was in breach of its obligation to protect his rights to freedom of expression (Article 10 of the European Convention on Human Rights) and association (Article 11 of the Convention). The ECHR agreed with him by a majority of four to three.
Redfearn, who had no history of misconduct or poor performance, was employed by Serco to drive disabled children around the Bradford area. The vast majority of his passengers and many of his colleagues were Asian.
Once it became public knowledge that he had been elected as a BNP councillor, Serco received a number of complaints, both from the trade unions representing some of its employees, and from Redfearn’s co-workers.
Concerned that his continued employment could jeopardise the health or safety of its workers, its passengers and Redfearn himself, Serco decided to dismiss him. With less than one year’s service, he was unable to bring a claim for unfair dismissal. Instead he alleged that his dismissal was an unlawful act of race discrimination.
Redfearn argued that he was dismissed on “racial grounds” in breach of section 1 of the Race Relations Act 1976 because:
- He would not have been dismissed had most of his passengers and a large proportion of his co-workers not been Asian
- He was dismissed due to his membership of a “whites-only” organisation and his views on race.
Having lost at the employment tribunal, and then, somewhat surprisingly, having won at the Employment Appeal Tribunal
, Redfearn’s case progressed to the Court of Appeal.
While conceding that the decision to dismiss Redfearn had included such “racial considerations” as the race of his passengers and a high proportion of his colleagues, the Court of Appeal held that this did not mean it was right to categorise his dismissal as having been undertaken “on racial grounds”.
In particular, the Court could not accept Redfearn’s argument that “racial grounds” covered a person’s views on race or membership of a whites-only organisation (since the judgment, the BNP has allowed non-white members to join).
Instead it considered that his complaint was one of discrimination on political grounds, which fell outside of the scope of the UK’s existing discrimination laws. It was this statement that led Redfearn to lodge a complaint with the ECHR.
Having accepted that his case fell outside of the scope of the Race Relations Act, the ECHR found that UK law was deficient in not providing any protection against dismissal on grounds of political opinion or affiliation.
It conceded that such a dismissal may be subject to the UK’s unfair dismissal protection if an employer could not objectively justify it, but that this protection did not apply to all employees.
Those, such as Redfearn, who did not have sufficient length of service to bring an unfair dismissal claim, were left without any effective protection at all. Accordingly, the Court ruled that the UK government had failed in its duty to safeguard his Article 10 and 11 rights.
Since Redfearn’s dismissal, the UK government has actually extended the qualifying period for unfair dismissal protection from one to two years. This means that there are now even more employees who are potentially vulnerable to dismissal in breach of their Article 10 and/or 11 rights with no redress under UK law.
Implications for the UK government and UK employers
As the decision was agreed by a four-to-three majority, the UK government may elect to appeal. If it chooses not to, it only really has two options.
The first would be to add “political beliefs” as a separate protected category under the Equality Act alongside race, sex, religion and the others. This change would enable employees to bring a stand-alone complaint of discrimination on political grounds regardless of their length of service.
In reality, however, the government is likely to resist any change that would increase the scope of the UK’s existing equality laws in this way.
The second, and potentially more palatable option, would be to add dismissal on the grounds of political beliefs to the range of exceptions that already exist to the qualifying period for unfair dismissal such as whistle-blowing or flexible working requests.
The problem with this approach is that, arguably, it does not fully address the concerns raised by the ECHR as there would still be no effective protection from discriminatory acts that falls short of dismissal. Such acts include a failure to recruit or promote individuals because of their political beliefs.
Even if this option were acceptable, however, it is likely to lead to more and/or increasingly complex tribunal claims.
As proved to be the case when the whistle-blowing exception was introduced, it is likely that a number of employees would allege that they were dismissed due to their political views, in an attempt to circumvent the unfair dismissal qualifying period.
Such a situation would, in turn, lead to potentially difficult litigation focusing on the issue of what amounts to a ‘political belief’, and the extent to which that belief was material to the employer’s decision to dismiss.
This kind of scenario is clearly highly undesirable for employers and runs contrary to the express aims of the government’s recent employment reforms to reduce the number of tribunal claims and make it easier for businesses to hire and fire.
But while such changes are unlikely to be introduced immediately, UK employers should take note of the ECHR’s judgment and consider amending their practices accordingly.
Specifically, they will need to take great care if looking to dismiss someone who already enjoys unfair dismissal protection as was the case with Redfearn, where the employee holds potentially unpalatable political views that may adversely impact on their employer or their ability to do the job.
At the very least, it will be necessary to carry out a detailed analysis of the risks associated with that individual’s continued employment (for example, potential damage to the employer’s reputation and/or the health and safety of its workforce and customers) and to fully examine all of the alternatives before reaching a decision to dismiss.
It will be interesting to see what the government’s next steps are. But whatever it chooses to do, this area of law is only likely to become a more difficult one for employers going forward.
Nick Thomas is a partner in the labour and employment team at law firm, Morgan, Lewis & Bockius. He represented Serco in the original UK litigation.