The European Court of Human Rights (ECHR) has issued a decision this week on the case of Arthur Redfearn, who was dismissed by Serco from his job as a driver for disabled people in 2004. Mr. Redfearn was elected as a local councilor for the British National Party in Bradford shortly before his dismissal.

Following a series of Employment Tribunal and Court of Appeal cases, Mr. Redfearn took the case to the ECHR. The Court of Appeal had ruled that Mr.Redfearn’s dismissal was not covered by discrimination laws as it was made on political and not racial grounds. The ECHR concluded that the UK’s failure to offer any form of statutory protection against dismissal in these circumstances contravened Article 11 (freedom of association) of the European Convention on Human Rights. The ECHR has ruled that the UK has a duty to protect employees in Mr. Redfearn’s position, and should amend its employment legislation accordingly.

Morgan Lewis employment partner Nick Thomas, who advised Serco on the original case up to and including the UK Court of Appeal victory, comments: “Mr.Redfearn was unable to bring a claim for unfair dismissal, as he had been employed by Serco for less than a year when he was dismissed. Since that time, the UK Government has actually extended that qualifying period for unfair dismissal protection to two years. The Government may issue an appeal to the ECHR’s Grand Chamber, particularly given the division of opinion amongst the ECHR judges. However, if it chooses not to appeal, it really only has two choices in light of the ECHR’s decision:- either to add political views as a separate protected category to the existing equality legislation, alongside race, religion etc.; or to make dismissal on the grounds of an employee’s political views an exception to the qualifying period for unfair dismissal as, for example, with whistle-blowing. I strongly suspect that it will choose the latter.

What will be the result of this new exception? As proved to be the case when the whistle-blowing exception was introduced, without doubt we will see employees with less than two years’ service alleging that they have been dismissed on the grounds of their political views, in an attempt to circumvent the unfair dismissal qualifying period. This will in turn lead to an increased number of tribunal claims and potentially difficult litigation focusing on the issue of what amounts to a ‘political belief’ and the extent to which that belief was in any way material to the employer’s decision to dismiss.

This is exactly the opposite of the effect that the Government’s recent employment reforms were intended to achieve, namely reducing the number of tribunal claims and making it easier for businesses to hire and fire. Even without such legislative changes, this case makes it clear that employers will need to take great care when looking to dismiss those who already enjoy unfair dismissal protection in cases such as Mr. Redfearn’s, where the employee holds potentially unpalatable political views that may adversely impact on their employer or their ability to do their job. At the very least, it will be necessary to carry out some detailed analysis of the risks associated with the individual’s continued employment (for example to the employer’s reputation and/or the health and safety of its workforce and customers) and to fully examine all alternatives before reaching a decision to dismiss. It will be interesting to see what the Government’s next steps are, but whatever it chooses to do this is an area that is likely to become more difficult for employers going forward.”