Redfearn v The United Kingdom Application no. 47335/06
Appeal that dismissal of the appellant for being elected as a councillor for the BNP was a violation of his article 9,10,11 & 13 rights. The Court held by a majority of 4 to 3 that the appellant's Article 11 rights had been violated.
The appellant began work as a driver ferrying children and adults with physical and mental disabilities. He worked in and around Bradford and most of his passengers were of Asian origin. He was summarily dismissed, after nearly 7 months employment, following his election to the local council representing the British National Party and after concerns were voiced by unions that their members could be at risk of harm or abuse. There were no allegations against the appellant and it was noted that he had been nominated as a 'first class employee' by his line manager, who was also of Asian origin. As he had not had 12 months continuous employment the appellant could not claim for unfair dismissal and so issued proceedings for race discrimination under the RRA 1976. The ET dismissed the claims as the decision had been made on safety grounds, not of race. The EAT overturned the decision as the ET had erred on the construction of the term 'racial grounds' but the Court of Appeal then reversed that decision as wrong in principle, partly because no comparator had been proposed.
In the ECHR, the appellant argued that for an employee to lose his job for exercising his right to freedom of association 'struck at the "very substance" of that right' and that the Government had a positive obligation under Article 11 to enact legislation that would protect that right even though he could not claim for unfair dismissal. The Court was
"struck by the fact that these complaints, as summarised in paragraph 10, were in respect of prospective problems and not in respect of anything that the applicant had done or had failed to do in the actual exercise of his employment...."
and that given the age of the appellant "the consequences of his dismissal were serious and capable of striking at the very substance of his rights under Article 11 of the Convention"
It then goes to find that a claim for unfair dismissal would be an appropriate remedy but this route was not available in the case and the RRA 1976 did not offer the appropriate protection before concluding 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."
Published: 12/11/2012 08:46