The European Court of Human Rights today released its judgment in the case of Redfearn v UK, and held that the UK had failed through its domestic law adequately to protect the right of Mr Redfearn, a British National Party councillor, to freedom of association under Article 11 of the European Convention on Human Rights.
Harini Iyengar summarises the judgment and considers whether the UK must now remove the qualifying period for unfair dismissal or enact a new law prohibiting workplace discrimination because of political affiliation or association.
Facts
Mr Redfearn, who was white British, worked as a bus driver for Serco, which provided services to Bradford City Council. Most of his passengers were vulnerable adults and children with physical and/or mental disabilities, who were of Asian origin. There had been no complaints about his work or conduct at work, and his Asian boss had nominated him for the award of “first-class employee”.
When Mr Redfearn was reported in a newspaper to be a local election candidate for the British National Party (“BNP”) (a party then open only to white British people, which was wholly opposed to integration between British and non-European peoples, and was committed to restoring the British population to an overwhelmingly white makeup), he was temporarily put on to mail delivery duties. Upon his election as a BNP councillor, Serco received a complaint from UNISON, took legal advice, and dismissed him.
UK Court Proceedings
Since Mr Redfearn lacked the requisite qualifying period of employment to claim unfair dismissal, he brought claims of race discrimination. The Employment Tribunal (“ET”) dismissed the claim of direct race discrimination on the basis that the dismissal had not been “on racial grounds” but had been on health and safety grounds: his continued employment could lead to difficulties with other employees; damage Serco’s relationship with the unions; lead to attacks on Serco’s minibuses jeopardising the health and safety of its employees, its vulnerable passengers and Mr Redfearn; cause considerable anxiety to passengers and relatives or carers entrusting vulnerable passengers to Serco’s care; and damage Serco’s reputation so as potentially to place at risk its existing contracts and future work bids in the public sector and elsewhere. Indirect discrimination was held to be justified as a proportionate means of achieving the legitimate aim of maintaining health and safety.
The Employment Appeal Tribunal (“EAT”) found that the ET had erred in law because “on racial grounds” should have been construed more broadly and the ET had failed to explain its conclusion that indirect discrimination had been justified, including not considering any alternatives to dismissal.
Before the Court of Appeal, Serco succeeded in having the ET judgment restored. Mummery LJ held that the treatment by Serco had not been “on racial grounds” because the less favourable treatment had not been on the ground of being white but on the ground of a particular non-racial characteristic shared with a tiny proportion of the white population, ie membership of the BNP. Serco would have applied the same treatment to an employee who had belonged to a similar political party which confined its membership to black people. As to indirect discrimination, Mummery LJ held that the ET had wrongly identified the “provision, criterion or practice” (“PCP”) too narrowly as membership of the BNP. This was meaningless because the PCP could never be applied to a non-white person because only white people could join the BNP. Serco’s real PCP was instead applied to membership of any political organisations like the BNP, which existed to promote views hostile to people of a different colour, and therefore did not put Mr Redfearn to “a particular disadvantage”.
European Court of Human Rights Proceedings
Mr Redfearn argued that the UK had breached his right to freedom of expression under Article 10 of the European Convention on Human Rights (“ECHR”), his right to freedom of association under Article 11, and his right to freedom of thought, conscience and religion under Article 9. He also complained of breaches of Article 13 concerning access to an effective remedy and Article 14 concerning discrimination in the securing of ECHR rights and freedoms.
His case on Article 11 was that for an employee to lose his job for exercising his right to freedom of association struck at the very substance of the right, so the UK had a positive obligation to enact legislation protecting him. He complained that, lacking one year’s continuous employment, he had been unable to bring a claim of unfair dismissal, and that, had he been able to do so, the defence of “some other substantial reason” in the form of his political involvement could have been used by Serco.
The European Court of Human Rights (“ECtHR”) was split 4:3, with the majority in Mr Redfearn’s favour. The majority considered that his complaint was more appropriately analysed under the right to freedom of association than under the right to freedom of expression, but the former must be read in the light of the latter.
It also recognised “the difficult position that Serco may have found itself in when [Mr Redfearn’s] candidature became public knowledge”. Further, the ECtHR accepted that even without specific complaints from service users about Mr Redfearn, his membership of the BNP could have impacted on Serco’s provision of services to Bradford City Council “especially as the majority of service users were vulnerable persons of Asian origin”. Nevertheless, it was significant that Mr Redfearn had been a “first-class employee” and no complaints had been received about him until his political affiliation became known. The ECtHR gave particular weight to the fact that the complaints which were received were about prospective problems rather than anything which Mr Redfearn had done or failed to do in the actual exercise of his employment. It was also swayed by the fact that he was working in a non-skilled post which did not seem to have required significant training or experience, was aged 56 at the date of dismissal, and was therefore likely to have experienced considerable difficulty in finding new employment. The ECtHR concluded that the consequences of dismissal were serious and could strike at the heart of Mr Redfearn’s Article 11 right.
The next step was to consider whether the UK had struck a fair balance between his Article 11 right and “the risk, if any, that his continued employment posed for fellow employees and service users”. According to the ECtHR, it was not required to “pass judgment on the policies or aims, obnoxious or otherwise, of the BNP at the relevant time,” because the BNP was not an illegal party under domestic law and was not performing illegal activities.
In the judgment of the ECtHR, a claim for unfair dismissal would be an appropriate domestic remedy for someone dismissed for his political beliefs or affiliations, because the employer would have to establish that the dismissal had been fair for “some other substantial reason” and the ET must take full account of Article 11 rights in accordance with the Human Rights Act 1998. Nevertheless, lacking the requisite period of employment, Mr Redfearn could not benefit from the law on unfair dismissal. The ECtHR avoided condemning the Race Relations Act 1976 as a wholly ineffective remedy, but because it required “a liberal interpretation of the relevant provisions”, as adopted only by the EAT domestically, the 1976 Act had failed to offer Mr Redfearn any protection of his Article 11 rights.
In consequence, the one-year qualifying period for unfair dismissal had been detrimental to Mr Redfearn. The ECtHR held that it was in principle both reasonable and appropriate for the UK to have bolstered the domestic labour market with a one-year qualification period. It was troubling to the ECtHR that exceptions to the qualifying period existed for certain forms of discrimination but not for employees dismissed on account of their political opinion or affiliation, and it noted that Article 11 also protects those whose views offend, shock or disturb.
The ECtHR says that it was incumbent on the UK to take reasonable and appropriate measures to protect employees with less than one year’s service from dismissal on grounds of political opinion or affiliation, either through an exception to the one-year qualifying period or a free-standing claim of unlawful discrimination on grounds of political opinion or affiliation.
According to the ECtHR, Mr Redfearn’s case did not disclose any appearance of a violation of his right to freedom of thought, conscience or religion under Article 9 of the ECHR. It also dismissed the Article 13 complaint. Although the Article 14 complaint was not manifestly ill-founded, the ECHR declined to examine it further given its judgment on Article 11.
Implications?
Mr Redfearn’s case arose in 2004, when there was a one-year qualifying period for unfair dismissal, when the Race Relations Act 1976 was in force, when the Employment Equality (Religion or Belief) Regulations 2003 were in force but before the domestic courts had developed a wide definition of philosophical belief.
The current legal landscape is subtly but significantly different. The qualifying period for claiming unfair dismissal is now two years. The Equality Act 2010 ditched the problematic requirement for discrimination to be “on racial grounds”. Mr Redfearn would now have to establish before an ET that he had been less favourably treated “because of” his race or his religion or belief. The domestic courts have also developed the law on religion or belief discrimination.
What Claims would be Brought Today?
Given the two-year qualifying period for unfair dismissal, it is likely that many of those, like Mr Redfearn, who believe they have been unfairly discriminated against at work because of their political affiliation or association, will find themselves, like him, in the terrain of discrimination law because they have less than two years’ continuous employment. In light of the changed test for direct discrimination and the EAT caselaw on religion or belief discrimination, it is likely that such claims will in the future be argued as claims of both race discrimination and religion or belief discrimination. Indeed, given the opportunity to recover much greater compensation than that available for unfair dismissal, it is likely that even an employee who had requisite service to claim unfair dismissal would also bring discrimination claims in this context.
Since the BNP has now extended its membership to people who are not white nationals, it is doubtful whether a claim for direct race discrimination would succeed even with a liberal interpretation of the “because of” test in the Equality Act 2010.
Although the BNP now admits non-white members, it seems probable that most of its members are white, and so an argument of indirect race discrimination could be developed by an employee. The ECtHR was unimpressed with the protections provided by the law on indirect discrimination, and the provisions on indirect discrimination in the Equality Act 2010 closely resemble those which were in the Race Relations Act 1976.
Nevertheless, because the facts of new cases will inevitably differ from those in Mr Redfearn’s case, it is likely that an employer who dismisses an employee because of BNP membership will face claims of both direct and indirect race discrimination. It would be strenuously argued by the employee that the ETs, in the light of Redfearn v UK, have to interpret the law on direct race discrimination and indirect race discrimination differently in future in cases involving BNP membership, in line with the EAT’s approach.
Something mysterious about the ECtHR’s judgment is the conclusion that the law on unfair dismissal, including the defence of “some other substantial reason” provides adequate protection for freedom of political affiliation and association, but the law on indirect discrimination including the defence of justification as a “proportionate means of achieving a legitimate aim” does not provide adequate protection. In practice, the evidence and arguments for both defences would be very similar.
Given the recent evolution of the law on religion or belief discrimination, the employee would probably also bring claims of direct and indirect religion or belief discrimination. Domestic caselaw has recently widened the concept of philosophical belief to include any belief with sufficient cogency, seriousness, cohesion and importance which is worthy of respect in a democratic society. The EAT’s watershed judgment in Nicholson v Grainger plc held that belief in man-made climate change was capable of amounting to a philosophical belief protected by the 2003 Regulations. In Hashman v Orchard Park Garden Centre, the EAT held that a belief in the sanctity of life including a belief that fox-hunting and hare-coursing were incompatible with the sanctity of life was likewise a protected philosophical belief.
Is a New Law preventing Workplace Discrimination because of Political Affiliation or Association Required?
How does the current domestic law on religion or belief square with the ECtHR’s view that the treatment accorded to Mr Redfearn did not engage his rights to freedom of thought, conscience and religion under Article 9 of the ECHR? Can a meaningful dividing line be drawn by the ECtHR between religious and philosophical beliefs and political beliefs? In South Africa, the Dutch Reformed Church used to use theological arguments in favour of apartheid, just as in the American South, the Bible was used to justify segregation and anti-miscegenation laws. On the other hand, the Equality and Human Rights Commission has suggested that a religious belief in the racial superiority of a particular race would fall outside the scope of the UK protections against discrimination because of religion or belief, as it would be incompatible with the rights and freedoms of others.
It remains to be seen whether the UK courts in a future case will extend the law on the protection of philosophical beliefs to cover political beliefs such as those of Mr Redfearn. If so, it would still remain to be seen whether the ECtHR would be prepared to accept that such a conflation in UK law of protection for religious and philosophical beliefs and protection of political beliefs constituted adequate protection of the right to freedom of political affiliation and association.
If the UK courts decline to extend the law on religion or belief discrimination to cover political beliefs which offend, shock or disturb, then it must follow from the ECtHR’s judgment today that it is incumbent on the UK to protect freedom of association either with a removal of the qualifying period for unfair dismissal (surely unthinkable given its recent extension to two years) or with a new law concerning discrimination because of political affiliation or belief.
In the light of Redfearn v UK, we must await the ECtHR judgments in the cases of Eweida and Chaplin v UK and Ladele and McFarlane v UK with even greater anticipation.
The judgment can be found here.