In June 2004, Mr. Redfearn was dismissed from his job at a private company following his election as a local councillor for the British National Party (BNP). His employers, Serco, provided transport services to local authorities. The reasons given for his dismissal included concerns regarding the health and safety of passengers and the reputation of the company. At that time, an employee could only bring an action for unfair dismissal after one year’s service (this has since been extended to two years). Exceptions to the requirement of a one year qualifying period were limited to dismissal on the grounds of race, sex, or religion.
In its judgement of 6 November 2012, the European Court of Human Rights (ECtHR) found that Mr. Redfearn should be allowed to argue discrimination on the basis of his political beliefs before an Employment Tribunal. The majority (4 of 7) considered that there is a positive obligation on the state to provide protection against dismissal by private companies of employees because of their membership of a political party. It was held that notwithstanding the exceptions to the one year qualifying period, the omission of any protection for dismissal on political grounds is inimical to democracy, as ‘political parties are a form of association essential to the proper functioning of democracy’ (paragraph 55). Conversely, in the minority judgement, the provision of exceptions to the one year qualifying period demonstrated that the UK had not acted arbitrarily and had legislated within the margin of appreciation the European Convention on Human Rights affords to its Contracting States.
The right to political association (within Article 11) is not absolute: it is qualified where restriction is deemed necessary in a democratic society. Thus, as the ECtHR observed, measures can be taken to ensure the neutrality of civil servants or the rights of others. This conflict with the rights of others is difficult to resolve. There were concerns in Mr. Redfearn’s local community that his job involved transporting people with physical and mental disabilities, the majority of whom were of Asian origin. However, at no point had Mr. Redfearn’s political beliefs affected his work; indeed, he was highly regarded and even nominated for the award of ‘first class employee’. The complaints against Mr. Redfearn were in respect of prospective issues, not of actual conduct or breach of contract. It is difficult, if not impossible, in those circumstances to justify the disqualification of an individual from his employment.
The ECtHR answered the legal question: ‘should an individual be able to argue unfair dismissal if they have been dismissed because of their political beliefs?’ Elsewhere, commentators have also addressed the philosophical question: ‘should a democracy protect anti-democratic ideas?’ (See commentaries by George Letsas and James Wilson. For a different response, see the statement released by Unite Against Facism.) However abhorrent one finds the views of the British National Party – and despite the irony in one of their members relying on the European Convention on Human Rights – the starting point for consideration of this issue should be that the BNP is a legal political party and the United Kingdom is a democracy. One of the paradoxes of democracy is that it must tolerate the intolerant, and that includes its anti-democratic elements. The success of a liberal democracy is represented not by its citizens speaking with one liberal egalitarian voice but by the prosperity of liberal egalitarian values through the diversity of views. It would be self-defeating to allow the dismissal from employment of an individual simply because his political views are extreme; it would be anti-democratic.
Blog post by Martin Downs