BNP bus driver wins unfair dismissal case in Strasbourg but is this the end of the matter?

Employment

The European Court of Human Rights has recently ruled for a Bradford bus driver, Arthur Redfearn, who was dismissed due to his affiliation with the British National Party (or BNP as it is more commonly known).

Mr Redfearn was originally dismissed in 2004 from his job as a bus driver for the company Serco following his election as a local councillor for the BNP. The decision was made on the basis that Mr Redfearn would be driving buses in a predominantly Asian community and could offend and distress users of Serco’s service. Mr Redfearn subsequently brought a claim to the Employment Tribunal for unfair dismissal on the basis of race discrimination. The Tribunal found otherwise and said that the discrimination was on the grounds of health and safety and was justified because it could make him a target for violent attacks, making for an unsafe bus service for passengers.

The case did not stop there and has been appealed all the way to the European Court of Human Rights in Strasbourg where a decision was reached that Mr Redfearn should not have been dismissed for his political association with the BNP.

So why should he not have been sacked? There are a number of reasons for the Court reaching this decision.

Firstly, the Court could not see why Mr Redfearn was not offered alternative employment within the company in a less customer-facing role. It would have been relatively easy to transfer him to a more administrative role where he would not be directly connected with the local ethnic population. This would reduce the likelihood of any health and safety issues. What is interesting is that Mr Redfearn was a good employee and had received no complaints prior to his election to the BNP and the dismissal was based on problems that had never actually happened but on those which were foreseen as possible.

However, more importantly, the Court focused on the requirements of a democratic and balanced society that protects freedom of association (in this case membership of the BNP). The Court made it clear that freedom of association should apply equally to people with views that may offend, shock and disturb others and to those that are more favourably received by society.

Another important issue at the heart of this case is the state of the UK employment protection legislation. Mr Redfearn only had 6 months service with Serco and would be precluded from bringing a claim within this period for political discrimination because he did not have the requisite qualifying period of one year in employment (now 2 years for people commencing employment after 5th April 2012). However, the judgment of the European Court of Human Rights makes it clear that employees who are dismissed for political association should not be required to satisfy the qualifying period for unfair dismissal claims.

If this decision remains, the UK will be required to address this issue and possibly amend the employment protection legislation to effect the decision of the court. However, it is likely this decision will be challenged by the UK and referred to the Grand Chamber of the European Court of Human Rights as it was only reached by a majority verdict rather than being a unanimous decision. It is unlikely this is the end of the story for the UK and Mr Redfearn!

All information is correct on the date of posting.