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UK Employment Alert: European Court of Human Rights Finds That Greater Protections Are Required For The Political Beliefs Of UK Employees

The European Court of Human Rights (ECtHR), in Redfearn v United Kingdom [2012] ECHR 1878, has held that employment law in the United Kingdom does not adequately protect individuals from dismissal as a result of their political beliefs or affiliations.  The UK has been given two options to address this failing. 

Background

Mr Redfearn was employed by Serco Limited (Serco) as a driver.  A local newspaper identified him as a British National Party (BNP) candidate in forthcoming local elections.  At the time, the BNP only extended membership to white nationals and, according to its constitution, was “wholly opposed to any form of integration between British and non-European peoples”. 

Following pressure from trade unions — a significant proportion of whose members were from ethnic minorities — and the subsequent election of Mr Redfearn as a local councillor, Serco summarily dismissed him solely on the basis of his political views.  Serco said that it was concerned i) about the potential health and safety risks of having Mr Redfearn as a driver, as his presence would give rise to anxiety amongst passengers, many of whom were of Asian origin; and ii) that Mr Redfearn’s continued employment could jeopardise Serco’s reputation and possibly lead to it losing its contract with the local council.

What happened?

Mr Redfearn had not been employed by Serco for long enough to be able to bring a claim for unfair dismissal.  He claimed instead that his situation fell within the race discrimination framework, on the basis that the BNP was a whites-only party.  That claim failed, and the UK courts found that discrimination on political grounds fell outside the protection of UK employment laws.

Mr Redfearn then took his complaint to the ECtHR, alleging that his right to “freedom of association” under the European Convention on Human Rights was not adequately protected under UK law.

The ECtHR agreed with him.  It decided that the UK must provide employees with an avenue for redress in the event of dismissal or, presumably, detriment, on grounds of political belief (even beliefs likely to “shock, disturb or offend”) or affiliation with a particular political party.  The ECtHR is not saying that Mr Redfearn’s dismissal should have been unlawful, but that the UK courts should have at least been able to consider whether Serco’s commercial interests should have prevailed over Mr Redfearn’s right to freedom of association.

What Does This Mean for Employers?

The ECtHR has suggested two ways in which the UK might choose to plug this gap:

  • Through a further exception to the length of service qualifying period for unfair dismissal claims (standing currently at two years) in cases where the dismissal is on the grounds of political opinion or affiliation.
  • Or by creating a new, freestanding claim for unlawful discrimination on grounds of political opinion or affiliation.

We will update you when the UK Government responds.

In the meantime, the ECtHR’s decision might embolden employees to develop relevant arguments.  The prudent course, therefore, remains to avoid dismissing any employee in the UK specifically on the grounds of his or her political affiliations or beliefs.  If faced with such an issue, employers should instead focus on the consequences of the employee’s affiliation or belief (such as actual customer complaints, breakdown in working relationships, etc,.) as the reason for any disciplinary action.

*****STOP PRESS*****

On a separate note, following its Consultation on Modern Workplaces last year, the UK Government has confirmed its intention to introduce more flexible parental leave laws, which are expected to come into effect in 2015, and also to extend to all employees the right to request flexible working, which is expected will come into effect by 2014.  It is anticipated that the Government will launch fresh consultations on its specific proposals in the new year.

© 2014 McDermott Will & Emery

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About this Author

Katie Clark, McDermott WIll Emery Law Firm, Labor employment attorney
Partner

Katie Clark is a partner in the law firm of McDermott Will & Emery UK LLP, based in its London office.  Her practice focuses on contentious and non-contentious employment matters. 

Katie is recognised as a leader in her field in Chambers UK 2011.  She is described as a “recognised force for her advocacy and commercial employment advice”, Chambers UK 2010 and as “very knowledgeable, superbly responsive, and no-nonsense…” Legal 500 UK 2011.

Her clients include global corporations, financial...

+44 20 7577 3492
David Dalgarno, McDermott Will Emery Law Firm, Labor Employment Attorney
Senior Counsel

David Dalgarno is senior counsel in the law firm of McDermott Will & Emery UK LLP, based in its London office.  His practice focuses on employment, labour and discrimination law particularly concerned with the human relations issues that arise during business change.  He has advised on the integration of investment banks, the establishment of joint venture businesses, inward investment, acquisitions, disposals and reorganisation downsizing exercises.  He also advises on employee benefit and share scheme issues.   Clients include investment banks...

+ 44 20 7577 6945
Associate

Paul McGrath is an associate in the law firm of McDermott Will & Emery UK LLP, based in its London office. His practice covers all areas of contentious and non-contentious employment law in the UK.

44-20-7577-6914
Partner

Sharon Tan is a partner in the firm of McDermott Will & Emery UK LLP, based in its London office.  Her practice focuses on all aspects of contentious and non-contentious employment law.

Sharon has extensive litigation experience.  She frequently handles matters such as complex discrimination, whistleblowing and unfair dismissal claims in the Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal.  She also has significant experience of handling High Court litigation, including injunctions and contractual disputes.

Sharon regularly...

+44 20 7577 3488