Human rights victory for BNP bus driver
6 November 2012
The BNP has been a relentless opponent of Human Rights Act and its manifesto for the 2010 General Election made no less than three separate declarations of its intention to scrap the Act and abrogate the European Convention of Human Rights which it described charmingly as being, “exploited to abuse Britain’s hospitality by the world’s scroungers.”
This has not stopped the European Court of Human Rights (ECtHR) riding to the rescue of one of their erstwhile councilors in Redfearn v United Kingdom
The ECtHR, by a majority of four to three (with British judge Sir Nicolas Bratza being one of the dissenters), decided that, despite the margin of appreciation, the positive obligation placed on the UK by Article 11 (right to free assembly and association) meant that a person dismissed on account of his political beliefs or affiliations should be able to claim unfair dismissal despite not having the qualifying one year’s service then applicable.
Bradford Bus driver
Arthur Redfearn was a driver for Serco Ltd who, in turn, provided services for Bradford City Council. He was also elected as a Councillor for the BNP while he was an employee.
He was dismissed after six months employment for a number of reasons including that he would present a risk to the health and safety of his co-workers and passengers and jeopardise the reputation of his employer. All the reasons were connected with his membership of the BNP.
In one of the more striking twists in the case, he claimed race discrimination.
He lost before the Employment Tribunal (which found dismissal was on health and safety grounds) but won at the EAT before losing again before the Court of Appeal which determined that, properly analysed, this was a complaint of discrimination on political grounds which fell outside anti-discrimination laws.
It was this gauntlet that the ECtHR picked up. They determined that a claim for unfair dismissal would be an appropriate remedy for a person dismissed on account of his political beliefs or affiliations. The Article 11 considerations could then be taken into account in deciding whether the dismissal was justified. This was excluded in this case by the one year service requirement in UK law adopted to provide flexibility in the labour market. However, the majority noted that this was waived in discrimination and other cases and determined that it was incumbent on the UK to create a further exception to the one year qualifying period for claims of dismissal on the grounds of political opinion or affiliation or to create a free standing cause of action to the same effect.
The minority contended that it should be left to Parliament to determine what exceptions there should be to the one year service rule and noted that the current list of exceptions was not chosen randomly and concluded that the UK had not exceeded the margin of appreciation that should be afforded to it in cases of this sort.
The ECtHR has not found that Mr Redfearn was discriminated against or unfairly dismissed, merely that he should be given the opportunity to argue this point before an Employment Tribunal.
This case similarly does not determine that BNP members, candidates or councilors cannot be dismissed from their posts but the reasons for the same will have to be substantial.
This is an unhappy case which shows all the hallmarks of not having been properly argued at first instance (this is no comment on the “Rolls Royce” treatment it received in the Court of Appeal).
Amongst the myriad mysteries in this case is why the Claimant didn’t argue that he was discriminated against on grounds of his beliefs. It is true that the Employment Equality (Religion or Belief) Regulations 2003 define “belief” as “any religious or philosophical belief.” However the Equality Directive 2000/78/EC contains no such qualification.
Serco were also treated as a private employer when it was at least arguable that they were an emanation of the state providing bus services as they were as West Yorkshire Transport Service. At the time the Claimant was dismissed, he delivering mail for the Council. It could be that the irony of seeking to rely on the direct effect of an EU Directive was just one embarrassment too many for the BNP.
Dismissing Councillor Redfearn for health and safety reasons also appears risible. The heart of the problem with the Claimant’s continuing employment was surely encapsulated by the EHRC, in their submissions as an Intervener before the ECtHR when they looked at the matter from the perspective of business users such as the Asian parents who were expected to entrust their children to the Claimant and the Council and Serco who were seeking to provide services to the public in a non-discriminatory way.
More difficult but not impossible
It should be noted that this case is only concerned with the dismissal of employees and not other detriments they may suffer. Its import is also said to be restricted to cases where the employee has not acquired the necessary service to ground an application of unfair dismissal. However, in the six and a half years this case has taken to wend its way from The Strand to Strasbourg, the government has now raised the minimum level of service to two years from 6 April 2012.
It is an open question whether a claim of dismissal in these circumstances could be brought by a worker and not an employee.
One curiosity of this case is that at the time the case was argued before the Court of Appeal, Mummery LJ was able to characterize the BNP as a party that confined its membership to white people. As a result of the highly contentious proceedings brought against the BNP by the Equality and Human Rights Commission, the history of which is set out in the Judgment of Moore-Bick LJ this is no longer strictly true. This may make it more difficult to dismiss members of the BNP from sensitive posts.
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