The European Court of Human Rights has ruled that a bus driver had his human rights infringed when he was unable to sue his employer for dismissing him after he was elected as a local councillor representing the British National Party. Tim Kenward reports.

Introduction

Arthur Redfearn was employed by Serco Ltd as a bus driver from December 2003 to his dismissal in June 2004. Serco provided transport to local authorities, including Bradford City Council. The majority of the applicant’s passengers were Asian in origin.

There had been no complaints about Mr Redfearn’s work or his conduct at work.

In May 2004, a local newspaper article identified Mr Redfearn as a candidate for the British National Party (BNP) in the forthcoming local elections. At the relevant time, the BNP only extended membership to white nationals.

Trade unions made representations to Serco about the Mr Redfearn’s continued employment. In June 2004, he was elected as a local councillor for the BNP. After taking legal advice, Serco summarily dismissed Mr Redfearn (on 30 June 2004) citing potential health and safety risks arising from his continued employment.

At the relevant time, the law required an employee to have one year’s continuous employment with an organisation before certain employment rights arise, including the right to claim unfair dismissal. (The law now requires two years’ continuous service for this right, but this does not affect the principle of the case.) Mr Redfearn’s lack of one year’s service meant that he was unable to sue for unfair dismissal. Instead, he brought tribunal proceedings, complaining that his dismissal amounted to race discrimination: no prior period of continuous employment is required to bring a discrimination case.

The UK legal process

The employment tribunal dismissed the complaint of race discrimination, as it was satisfied that if any discrimination existed against the Mr Redfearn it was not “on racial grounds” but rather on health and safety grounds. The Employment Appeal Tribunal (EAT) allowed Mr Redfearn’s appeal against this decision, on the basis that the treatment of him was capable of amounting to race discrimination given the broad construction to be applied to the statutory words of "on racial grounds”.

Serco appealed the EAT decision and was successful in the Court of Appeal, which held that Mr Redfearn had not been treated less favourably on the ground that he was white, but on the ground of a particular non-racial characteristic, namely membership of, and standing for election for, a political party like the BNP.

The Court of Appeal’s legal reasoning ran as follows. Serco was not adopting a policy that discriminated on the basis of a dividing line of colour or race. Serco would have applied the same approach to a member of a similar political party that confined its membership to black people. The dividing line of colour or race was not made by Serco but by the BNP, which defined its own composition by colour or race. The BNP could not make a non-racial criterion (party membership) into a racial one by the terms of its constitution limiting membership to white people. Properly analysed, the court held that Mr Redfearn’s complaint was of discrimination on political grounds, which fell outside the anti-discrimination laws.

After the Court of Appeal refused him leave to appeal this ruling, Mr Redfearn took his case to the European Court of Human Rights.

The European Court of Human Rights

The principal question for the court to consider was whether the measures taken by the UK in its legislation could be described as “reasonable and appropriate” to secure Mr Redfearn’s rights under article 11 of the European Convention on Human Rights (ECHR): the right to freedom of association.

It was noted that the one-year (now two-year) qualifying period did not apply equally to all dismissed employees. Rather, a number of exceptions were created to offer additional protection to employees dismissed on certain prohibited grounds, such as race, sex and religion, but no additional protection was afforded to employees who were dismissed on account of their political opinion or affiliation.

The court considered that 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.

As the UK legislation was deficient in this respect, the court concluded that the facts of the case gave rise to a violation of article 11 of the ECHR.

The legal ramifications

This decision will now be capable of being relied on as having direct effect in employment cases where the employer is a public body or an emanation of the State.

It could probably now also be argued that “political” should be treated as incorporated into the definition of philosophical beliefs for the purposes of the protection against discrimination on the grounds of religion or belief, which is now to be found in the Equality Act 2010.

Last reviewed 27 November 2012