Dismissal based on racist political activities unacceptably infringes freedom of association

Redfearn v the United Kingdom (Application no. 47335/06, ECHR, 6 November 2012)

Summary

The European Court of Human Rights has held that the UK’s failure to protect a bus driver against unfair dismissal based on his racist political activities was an unacceptable infringement of his freedom of association.

Facts

The applicant was employed as a driver by Serco Limited, which provided transport to local authorities including Bradford City Council. The applicant was responsible for transporting children and adults with physical and/or mental disabilities in the Bradford area. The majority of his passengers were of Asian origin. He was a highly competent employee whose supervisor nominated him for an award of “first-class employee”. The supervisor was also of Asian origin.

The applicant was elected as a local councillor for the British National Party, a white supremacist political party, which restricts membership to white nationals and, according to its constitution, is:

wholly opposed to any form of integration between British and non-European peoples. It is therefore committed to stemming and reversing the tide of non-white immigration and to restoring, by legal changes, negotiation and consent, the overwhelmingly white makeup of the British population that existed in Britain prior to 1948.

Following the applicant’s election, and a complaint about the applicant’s political affiliation by the public sector workers’ trade union, Serco summarily dismissed him. Relevantly, the union advised Serco that 70-80 percent of its customer base and 35 percent of its workforce were of Asian origin. Serco’s reasons for dismissing the applicant were that his employment would give rise to considerable anxiety among passengers and their carers, and therefore pose a health and safety risk, and that his employment could jeopardise its reputation and possibly lead to the loss of its contract with the Bradford City Council.

The applicant claimed that his dismissal was racially discriminatory. However, the Court of Appeal held that the dismissal was based on political grounds, not racial grounds, and therefore fell outside of UK anti-discrimination laws.

The Applicant had no cause of action relating to a breach of Convention rights, because Serco is not a public authority.

Relevantly, the applicant was precluded from making a complaint of unfair dismissal because he had not completed one year’s service with Serco – the qualifying period necessary for statutory protection from unfair dismissal.

Decision

The applicant alleged violations of his right to freedom of expression and freedom of association under the Convention for the Protection of Human Rights and Fundamental Freedoms (articles 10 and 11).

The European Court of Human Rights found that there was a violation of the applicant’s freedom of association. The Court held that it is incumbent on the UK 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 an exception to the one-year qualifying period for an unfair dismissal claim or through a free-standing claim for unlawful discrimination on grounds of political opinion or affiliation.

The Court noted that the decisive factor in cases such as this is that the domestic courts or tribunals be allowed to pronounce on whether or not, in the circumstances of the particular case, the interests of the employer should prevail over the employee’s right to freedom of association, regardless of the period of employment.

Given its finding that there was a violation of article 11 of the Convention, the Court did not consider it necessary to examine whether there was a violation of article 14 (equality before the law) read together with articles 10 (freedom of expression) and 11 (freedom of association).

Relevance to the Australian Context and the Victorian Charter

There is greater protection against discrimination based on political belief in Australia. The Fair Work Act 2009 (Cth) protects employees and prospective employees against adverse action based on political opinion, regardless of the employee’s length of service. State and Territory anti-discrimination legislation also provides protection against discrimination on this or similar grounds.

In Victoria, the Charter may also bolster these legal protections for employees of public authorities.

The decision is available at:  http://www.bailii.org/eu/cases/ECHR/2012/1878.html

Melanie Schleiger is Manager of the Equality Law Program at Victoria Legal Aid, and a Board member of the Human Rights Law Centre.