The recent case of Arthur Redfearn has proved to be of some significance in establishing a firmer basis for freedom of association within employment law.
Mr Redfearn, a bus driver, was considered a “first class employee” and had neither attracted complaints from his employers, West Yorkshire Transport Services (a subsidiary of Serco), nor from service users, during the short period of his employment. Not long after starting work with WYTS in December 2003, Mr Redfearn won a seat on Bradford Council representing the British National Party. He was featured in an article in the local newspaper and this prompted a trade union and other employees to make representations to WYTS. WYTS’s response to this pressure was summarily to dismiss Mr Redfearn on 30 June 2004. Because he had worked for them for six months only, which was less than the statutory minimum period, he was unable to bring a case for unfair dismissal against them. Instead, he was compelled to claim racial discrimination (on the basis that the BNP was, at the time of the case, a “whites-only organization”) – an ironic position given the BNP’s longstanding opposition to racial discrimination legislation.
Mr Redfearn’s employment had been principally as a driver of buses for Asian adults and children with disabilities. WYTS claimed before the employment tribunal that their buses could come under attack from opponents of the BNP and that passengers and their carers could be caused anxiety about this. They attempted to justify Mr Redfearn’s dismissal on health and safety grounds, and the tribunal found in their favour. The suggestion that opponents of the BNP might use violence against buses of disabled children is one that should raise eyebrows.
In July 2005, Mr Redfearn won an appeal against the tribunal decision on the grounds that no consideration had been given to him being offered alternative employment, for example on non-driving duties. In May 2006, WYTS appealed this decision in turn to the Court of Appeal and won, the tribunal deciding that the discrimination Mr Redfearn had experienced was political, not racial, in nature and thus fell outside the scope of anti-discrimination laws. It concluded that Mr Redfearn’s beliefs were incompatible with the European Convention of Human Rights, which would not uphold rights where to do so would compromise its values of “tolerance, non-discrimination and social peace”.
Having been refused leave to appeal to the House of Lords, Mr Redfearn, who appears to have displayed more than usual reserves of persistence in the face of official adversity, took his case directly to the European Court of Human Rights. In November 2012 the ECHR gave judgement for Mr Redfearn, ruling that his human rights had been breached by Serco. It stated that it was “struck by the fact that he had been summarily dismissed following complaints about problems which had never actually occurred, without any apparent consideration being given to the possibility of transferring him to a non-customer facing role”.
The ECHR said that the right to freedom of association “must apply not only to people or associations whose views are favourably received or regarded as inoffensive, but also to those whose views offend, shock or disturb”. This is significant, because the legislative imposition of the values of “tolerance, non-discrimination and social peace” itself involves considerable curbs upon freedom of association: association is by nature exclusive to a greater or lesser extent, and thus is likely to involve non-tolerance and discrimination at some level , whether in prohibited areas or not.
Mr Redfearn not only won a personal victory, but his case has also resulted in a change to UK law, in respect of an amendment to the Enterprise and Regulatory Reform Bill which is currently before the House of Lords. In its judgement, the ECHR stated that the UK must “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 under the 1996 Act or through a freestanding claim for unlawful discrimination on grounds of political opinion or affiliation”. The change in the law – perhaps we could dub it the Redfearn Amendment – means that the right of an employee not to be dismissed by reason of his or her political views or memberships will now start from the first day of employment.
Writing in spiked! today, Rosamund Cuckston suggests that this ruling may in fact have the perverse effect of further constraining freedom of association, making employers carry out “risk assessments” before employing individuals with controversial views. Although I share her mistrust of the ECHR and its imposition of core values that have potentially troublesome implications, I do not share her pessimism. As I see it, political beliefs have now joined the list of other protected criteria in employment that may give rise to a discrimination case. It is more likely that employers will be careful not to ask questions in interview or application concerning a candidate’s political beliefs that could be seen as potentially problematic for them, and that they will recognize that they need to be careful regarding this area in respect of their existing workforce.
What will also be interesting is whether this change in the law has implications for those employment situations in which membership of the BNP is at present the subject of overt and active discrimination in the form of an outright ban. Organizations that have a ban on BNP membership among their workforce include the police, the Prison Service, and the Church of England in respect of its clergy. Other employers have considered or have been reported to be considering similar moves. There have been several situations in the past involving BNP members who may also be affected by this change.
While the BNP are understandably delighted at this situation, the implications go well beyond the party and its members. A free society must preserve the right of freedom of association as a core principle. It should also ensure that people cannot be sacked from their jobs for holding political views, however distasteful they may be to some, that are not in line with those of the prevailing orthodoxy. If the arguments of the BNP are to be challenged, the correct means to do so is by confronting those arguments in the course of open political debate, not by suppressing society’s freedoms.
These days we are often told that people do not feel they can speak their minds in opposition to a culture of political correctness because to do so would threaten their employment. It would appear that those people have been thrown a legislative lifeline by the present developments. This, as they say, could turn out to be a game-changer.