December 11, 2012
Last month, the Court decided a case that may end up in the Grand Chamber: Redfearn v. the United Kingdom. The case concerns the dismissal of an employee on account of his political affiliation with the British National Party (“the BNP”). At the relevant time, the BNP “only extended membership to white nationals” (paragraph 9). The Court was sharply divided (4-3 with Judge Bratza among the dissenters). Though the main issue before the Court was narrow – whether the applicant should have had the opportunity to challenge his dismissal on grounds of political belief or affiliation – the case indirectly confronts the Court with more difficult and substantive questions, including whether the applicant’s political view/affiliation (racist) should be entitled to claim protection. Moreover, the case raises issues as to how far the Court can go in imposing positive obligations on States to offer protection against dismissals on account of political belief and affiliation.
The applicant was a bus driver at a private company (“Serco”) providing transport services to local authorities. Mr. Redfearn was in charge of driving people with physical/mental disabilities, the majority of which were of Asian origin. Initially, there were no complaints about his conduct or work. On the contrary, the applicant was nominated for the award of “first-class employee.” However, right after a local newspaper revealed Mr. Redfearn’s candidacy for the BNP in the upcoming local elections, the public sector workers’ union expressed concern about the applicant’s continued employment “bearing in mind the BNP’s overt and racist/fascist agenda” (paragraph 10). On 15 June 2004, the applicant was elected as a local councilor for the BNP. Fifteen days later, Serco dismissed him. One of the reasons given for his dismissal was potential health and safety risk, as the applicant’s continued employment would give rise to considerable anxiety among passengers.
U.K. Employment Law requires one year of service before an employee can bring an action for unfair dismissal against her employer (“the one-year qualifying period”). The law provides however for some exceptions: an employee can challenge her dismissal within the first year of work in certain circumstances, including dismissals on grounds of religion, sex and race. Political belief or affiliation is not on the list of prohibited grounds. Since the applicant had worked with Serco for less than one year, he was unable to benefit from this remedy. He brought a race discrimination complaint under the Race Relations Act 1976 but the claim was ultimately rejected. In essence, the issue before the Court was whether the U.K., in including the one-year qualifying period, could be said to have taken reasonable and appropriate measures to protect the applicant’s freedom of association.
The Court’s Judgment
The Court found a violation of Article 11 (freedom of association) basically because U.K. employment law failed to provide the applicant with a claim to have the proportionality of his dismissal examined by a court. What troubled the Court was that, during the first year of work, U.K. law categorically excludes all possibility of balancing the interests of employers against those of dismissed employees on the basis of their political beliefs or affiliations. The Court’s finding of a violation is ultimately based on two well-known principles of the Strasbourg case law.
First, relying on its Article 11 principle that political parties are essential to the proper functioning of democracy, the Court holds: “In view of the importance of democracy in the Convention system, the Court considers 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” (paragraph 55). Second, and most fundamentally, the Court supports the applicant’s right to challenge his dismissal notwithstanding the nature of his political beliefs and his public identification with the BNP’s policies: “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” (paragraph 56). The Court concludes:
[I]t was incumbent on the respondent State to 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 (paragraph 57).
The Court’s conclusion raises several questions. One of them has to do with the application of the margin of appreciation. The key question here is: Has the Court gone too far in stating that the U.K. should have either added political views or affiliation to the list of exceptions or created an independent claim against discrimination on grounds of political views or association for those with less than one year of work? Judges Bratza, Hirvelä and Nicolaou – in their joint partly dissenting opinion – think that the majority has simply pressed the State’s positive obligations 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 (paragraph 4).
From a margin-of-appreciation viewpoint, the dissenters seem to have a point: having created certain exceptions to the qualifying period why would the State be obliged to create a further exception or a free-standing discrimination claim? In fact, the majority accepted that “in view of the margin of appreciation afforded to Contracting States in formulating and implementing social policy, it was in principle both reasonable and appropriate for the respondent State to bolster the domestic labour market by preventing new employees from bringing unfair dismissal claims” (paragraph 53). So it seems that the problem for the majority was not the qualifying period in itself but the fact that additional protection (protection during the first year of work) was not offered to all dismissed employees equally: while religion, race and sex are protected during that period, political view or affiliation is not.
The dissenters however believe that the choice of the prohibited grounds of discrimination within employment falls with the State’s margin of appreciation. For them, the differential treatment between political opinion/affiliation, on one side, and race, sex and religion, on the other, is actually justified. They sustain that Parliament’s choice of religion, race and sex as grounds requiring special protection is not “random or arbitrary.” The dissenters actually rely on the Court’s own case law, which, in their view, has traditionally treated certain grounds of difference as “suspect” – including race, sex and religion – and required “very weighty reasons” by way of justification.
On a side note, one aspect of the dissenting opinion I find particularly interesting is that they include religion as a ground traditionally treated as suspect in the Court’s case law. It is not however entirely clear to me whether one can draw such a conclusion from the case the dissenters refer to: Hoffman v. Austria. Hoffmann does not actually mention “very weighty reasons” (the case is in fact from 1993, which may explain why) or anything of the sort. So it seems that the dissenters interpreted the case rather loosely. Perhaps they were thinking about this part: “a distinction based essentially on a difference in religion alone is not acceptable” (paragraph 36).In any event, and regardless of whether or not religion has been regarded as suspect in the Court’s case law, I do think that there are reasons to regard differentiations on the grounds of religion as such and, therefore, as subject to a heightened level of scrutiny. It is hard to deny the discrimination that many religious groups have suffered in the past and continue suffering in the present as a result of negative social views toward them. This history of discrimination – a factor that, by the way, the Court has used in its case law (see e.g., Kiyutin and Alajos Kiss) – is precisely what makes distinctions on the grounds of religion most likely to be tainted by prejudice.
But going back to the majority opinion, it is hard to draw any broader conclusions from the judgment, as the Court largely sticks to the narrow procedural aspect of the case, that is, to the fact that the applicant did not even have a chance to have the proportionality of his dismissal examined. One can however speculate what a proper proportionality analysis should have looked like. One element any serious proportionality analysis could not ignore is that Mr. Redfearn was driving people against whom he publicly holds racist views. Now, what weight should be attached to this factor is a different matter.
The Third Party Intervener “The Equality and Human Rights Commission” argued that the fact that “the applicant was in direct contact with service users, a significant proportion of whom were of an ethnic or religious group towards which the BNP had expressed hostility, would render any interference with his rights under Article 11 proportionate” (paragraph 40). For the Third Party Intervener, the applicant’s public active membership of a party such as the BNP would impact on the employer’s provision of services, regardless of whether there were complaints about his work. Another factor mentioned by the Third Party Intervener is whether or not public trust and confidence are involved.
George Letsas argues in the U.K. Constitutional Law Group Blog that these are “bad arguments.” He thinks that the mere fact that service users do not want to be served by an employee endorsing a particular ideology should not be a reason to dismiss her/him: “Just like the employer would be unjustified in firing a communist – or, for that matter, an HIV/AIDS worker solely because clients do not want to be served by her or him, likewise it would be unjustified to fire BNP members . . . solely because ethnic minorities do not want to be served by them.” Letsas’ ultimate point may make sense: it is problematic to fire people merely because of their beliefs absent evidence of wrongful action or real risk. However, the comparison of Redfearn with the cases of employees living with HIV or holding communist views does not really work. In these two examples, the prejudice lies with the service users (against employees living with HIV or those affiliated to the Communist Party) while in Redfearn the prejudice lies with Mr. Redfearn himself. It is he – and not the service users – who holds prejudiced views against the people he serves. So service users may have legitimate reasons to avoid Mr. Redfearn’s service. In any case, the Court did not need to go this far in the analysis.
To conclude, even though the Court’s support for the applicant’s right is limited to the right to bring a case against his employer, the Court’s decision ultimately pushes for larger positive obligations to protect individuals’ political views/affiliations (both tolerant and intolerant) in the field of employment. The message in Redfearn is clear: claims for unfair dismissal in such cases should be afforded special protection regardless of the nature of the belief.