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Too Many Cooks?

Too Many Cooks?

The interplay, and (as is so often the case) the tension, between domestic and European law was brought into sharp focus again last week. And, once again, employment law was at the centre of the debate. By a majority of four to three, the European Court of Human Rights (ECHR) decided that the UK’s requirement for employees to have one year’s service (since April 2012 two years’ service) before they can claim unfair dismissal was incompatible with the right of European citizens to free assembly and association.

The facts of the case are probably what made it headline grabbing: Mr Redfearn (a bus driver for Serco Ltd with around six months’ service) was dismissed for reasons which were connected to his membership of the British National Party. His employer believed that Mr Redfearn, as a member and Councillor of BNP, would pose a risk to its employees, service-users and, potentially, its reputation.

No doubt mindful that he didn’t have the qualifying service to claim unfair dismissal, Mr Redfearn raised a race discrimination claim in the Employment Tribunal. As an aside, it seems that the categorisation of his claim in this way was misconceived in the extreme: his dismissal was not on the grounds of race; it was on account of the risks presented by Mr Redfearn’s relationship with the BNP. The significance of this apparently fundamental flaw in the original claim was not lost on the Court of Appeal, which decided that the case was instead one of discrimination on the grounds of political affiliation.

Under UK law, employees are protected from discrimination on the grounds of religion or belief, with belief in this context meaning “any religious or philosophical belief”. The Government has been clear in its view that beliefs based on political theories would not, and were never intended to, fall within definition of philosophical beliefs. This message, to date, has been reflected in the judicial approach taken to such cases (for example, Marxist/Troxsyisk beliefs were not held to be protected under discrimination law). So far so good in terms of the Court of Appeal’s determination of Mr Redfearn’s case, or so you might think.

Contrary to the domestic courts’ approach, the ECHR decided that Mr Redfrearn should have the right to complain of unfair dismissal, in circumstances where he was dismissed because of his political beliefs. On the basis of the current UK legal landscape, he was prohibited from doing so because employees must have sufficient service to have such a claim heard. This, the majority of the ECHR held, was at odds with the Article 11 right to free assembly and association. In order to remedy this deficiency (so categorised by the ECHR), it was held that the UK should effectively do away with the one year service requirement for this type of case.

There are so many issues raised by this decision, it would be easy (particularly for employment lawyers!) to get lost in the technical detail. But if you break this decision down to its elements, the ECHR is elevating the status of “political beliefs” in the context of UK employment law. And this, it seems to me, is where the tension arises…

The UK used its “margin of appreciation” (legal leeway afforded to all EU member states) to interpret the protected characteristic of “belief” in the context of the Equal Treatment Directive as “religion or philosophical belief”, which need not include political belief. 

Instead of criticising the UK’s approach to the definition of “belief”, the ECHR has focussed on qualifying service, directing that this requirement should be waived for unfair dismissal claims of this nature. Other than where dismissals constitute an act of discrimination, the qualifying service requirement is only dispensed with for automatically unfair dismissals; a category that is limited to exceptional circumstances involving indefensible reasons for dismissal.

The ECHR’s clear message to the UK is that those dismissed on account of their political beliefs should be able to challenge that decision, regardless of their length of service. The question (which, if this decision is appealed by Government, will be answered by the Grand Chamber of the ECHR) is whether the legitimacy of such a complaint has already been (competently) determined by the UK through its exclusion of the political beliefs from the current discrimination law regime, or whether Article 11 trumps this application of the margin of appreciation, in such a way that a new kind of unfair dismissal claim should be created, with no qualifying service requirement.

It’s worth noting that in its judgment, the ECHR stated that Article 11 is applicable not only to individuals whose associations are “favourably received”, but also those whose views “offend, shock or disturb”. Arguably, this is where the real tension is created. If this decision stands, it will be interesting to see how the Government reconciles this principle with our existing domestic legal framework.

Jennifer Skeoch
Senior Solicitor