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Strasbourg demands protection against discrimination for political views

Bradford bus driver should not have been sacked for being BNP councillor

6 November 2012

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The European Court of Human Rights has demanded reform of UK employment laws to protect workers against discrimination on the grounds of political beliefs.

The ECtHR was ruling today in the case of Bradford bus driver Arthur Redfearn, who was summarily dismissed when he was elected councillor for the British National Party.

Redfearn’s passengers were disabled adults and children, and mostly Asian. However, the court heard that there were no complaints about his work and his supervisor, who was Asian, had nominated him as a ‘first-class employee’.

Redfearn could not claim unfair dismissal, as he had worked for private contractor Serco for less than a year.

Instead he claimed racial discrimination under the Race Relations Act 1976, a claim rejected by an employment tribunal in 2004, but accepted by the EAT the following year on the grounds that no consideration had been given to alternatives to dismissal.

The Court of Appeal allowed Serco’s appeal in 2006, ruling that Redfearn’s complaint was of discrimination on political and not racial grounds, which fell outside the scope of anti-discrimination laws.

The ECtHR ruled by a majority of four to three today that the absence of laws to protect workers from political discrimination was a violation of Article 11 of the ECHR (freedom of assembly and association).

The Strasbourg court said that “in the absence of judicial safeguards a legal system which allows dismissal from employment solely on account of the employee’s membership of a political party carries with it the potential for abuse.

“Even if the court were to acknowledge the legitimacy of Serco’s interest in dismissing the applicant from its workforce having regard to the nature of his political beliefs, the policies pursued by the BNP and his public identification with those policies through his election as a councillor, the fact remains that Article 11 is applicable not only to persons or associations whose views are favourably received or regarded as inoffensive or as a matter of indifference, but also those whose views offend, shock or disturb.”

The four judges said the UK must “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.”

Sir Nicolas Bratza, the British president of the ECtHR, was one of the three judges who issued a dissenting opinion.

They said: “We are unable to accept the argument that, having created certain exceptions to the requirement of employment for the qualifying period, the state was obliged to create a further exception in the case of dismissal on grounds of political opinion, still less that the Convention imposes a positive obligation to create a free-standing cause of action, without any temporal limitation.

“This, in our view, is to press the positive obligation too far. In a complex area of social and economic policy, it is in our view pre-eminently for parliament to decide what areas require special protection in the field of employment and the consequent scope of any exception created to the general rule.

“The choice of parliament of race, sex and religion as grounds requiring special protection can in no sense be seen as random or arbitrary.”

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