Dismissal and Article 11 rights

A recent ruling from the European Court of Human Rights on the dismissal of a BNP councillor from his job as a driver is a significant one for local authorities, says Allison Cook.

In the case of Redfearn v United Kingdom [2012], the European Court of Human Rights ("ECtHR") agreed with Mr Redfearn in finding that that there had been a violation of his Article 11 rights. The ECtHR ruled that UK law was deficient in not providing any protection against dismissal on grounds of political opinion or affiliation.

Mr Redfearn brought the action against the UK government after being dismissed by his employer, Serco. Mr Redfearn worked as a driver, transporting disabled people on behalf of the local authority. The majority of the service users were Asian. There had never being any complaints about Mr Redfearn and he was even awarded a "first-class employee" award by his supervisor.

However, after Mr Redfearn was elected as a local councillor for the BNP, Serco dismissed him. At this point, he had less than one year's service.

Prior to his dismissal, UNISON, the GMB and Serco's workforce raised concerns about Mr Redfearn's membership of the BNP and legal advice suggested that Mr Redfearn's continued employment would carry health and safety risks, cause reputational damage to Serco and cause considerable anxiety to passengers and their carers. At the time, the BNP's membership was restricted to white people and it was "opposed to any form of integration between British and non-European peoples".

As he did not meet the one-year qualifying period for unfair dismissal, Mr Redfearn issued a claim under the Race Relations Act 1976. His claim was eventually rejected by the Court of Appeal, which held that discrimination law should not be used to protect employees from unfavourable treatment for acting in a way that is racially discriminatory.

However, the ECtHR decided that Article 11 of the European Convention on Human Rights, which provides a universal right of freedom of assembly, applies to all associations, including those whose views offend, shock or disturb and it was therefore incumbent on the UK to protect this right either by creating an exception to the requirement for a qualifying period for unfair dismissal, or by creating a free-standing claim for unlawful discrimination on grounds of political affiliation.

In its ruling, the ECtHR criticised Serco's decision to dismiss Mr Redfearn summarily, without considering transferring him to a non-customer facing role, and the fact that he was dismissed in response to hypothetical problems as opposed to actual ones.

It is therefore a useful reminder of the importance of considering alternatives and giving the employee an opportunity to put across a response and evidencing this process before any dismissal. The ECtHR did not, however, suggest that it would always be unfair to dismiss an employee on these grounds.

This case is important for local authorities as public bodies must act in a way which is compatible with Convention rights. This means that public sector employees who are dismissed for membership of a political party could now bring civil claims under the HRA 1998 citing Article 11, even if they have no unfair dismissal rights.

It has been suggested that the UK may appeal to the Grand Chamber of the ECtHR but if the decision is not overturned the UK government will be under pressure to change the law although it is not clear at this stage whether the current administration have the appetite to do so.

Allison Cook is a Senior Associate at Veale Wasbrough Vizards. She can be contacted on 0117 314 5466 or by This email address is being protected from spambots. You need JavaScript enabled to view it..