Unfair dismissal for political views: no need for qualifying service
Author: Jean-Philippe Choi
The requirement for employees to have two years' service before bringing a claim for unfair dismissal where the reason for dismissal was the employee's political opinion or affiliation is to be removed.
The proposal, contained in amendments to the Enterprise and Regulatory Reform Bill currently going through Parliament, comes after the European Court of Human Rights ("ECHR") handed down its decision in Redfearn v United Kingdom.
The current position
As the law currently stands, employees are barred from bringing any claims of unfair dismissal without first completing two years' continuous service with their former employer. Previously the qualifying period was only one year but this was increased in April 2012. Currently, the only exception to this rule is for limited cases involving automatic unfair dismissal e.g. where the reason for the dismissal is pregnancy related.
In the present case, Mr Redfearn worked as a bus driver transporting children and disabled adults for Serco Limited. Mr Redfearn had been employed by Serco for around 7 months and during that time there had never been any complaints about his work or his conduct at work. In fact, Mr Redfearn had been nominated as a "first-class employee" by his supervisor.
Mr Redfearn was white British and around 75% of his passengers were of Asian origin. In his spare time, Mr Redfearn was involved in the British National Party ("BNP"), which at the time only extended membership to those who were white. When Serco found out that Mr Redfearn had been elected as local councillor for the BNP following concerns raised by Serco's trade unions, they summarily dismissed him.
As Mr Redfearn did not have the requisite one year's service (at the time), he was unable to bring a claim for unfair dismissal against Serco. Instead, he brought a claim for race discrimination, which was eventually rejected by the Court of Appeal which found that the reason for his dismissal was not because he was white but because of his membership of the BNP.
Mr Redfearn therefore turned to human rights law and brought the present action before the ECHR seeking a declaration that the UK Government has failed to protect his Article 11 right to freedom of assembly and association because domestic law gave him no remedy for dismissal due to his political opinions.
The ECHR handed down its decision in November 2012. It held, by a majority, that the UK had violated the European Convention on Human Rights as the one-year qualifying period deprived Mr Redfearn of the only means by which he could effectively challenge his dismissal and Mr Redfearn had suffered a detriment as a result.
The ECHR accepted that there was a positive duty on the UK to protect all employees from dismissal on the grounds of their political opinion, regardless of their length of service. To not do so would be an open door for abuse by employers.
Interestingly, the Government has just confirmed that it has decided not to appeal against this decision and instead, will implement the ECHR's proposition that employees seeking to bring unfair dismissal claims on the grounds of their political opinion or affiliation will be exempted from the current two-year qualifying period.
What does this mean for employers?
Redfearn was an unusual and difficult case, but the only implication of the subsequent change to the law is that it will allow an employee to bring a claim for unfair dismissal without the need for qualifying service (as they can already do in other limited situations). It is an entirely different matter for the employee to prove in any given case that their dismissal was actually unfair. The band of reasonable responses test remains in this respect. While each case will turn on its own facts, it should not be too difficult for an employer who has followed a proper procedure and acted reasonably to show that dismissal for affiliation with an extremist organisation is a fair reason to terminate.