In November 2012, the European Court of Human Rights (ECHR) issued an important and controversial judgment stating that UK employment laws did not comply with an important part of the European Convention on Human Rights.
The case concerned Mr Redfearn, who was employed as a driver for children and adults with mental and physical disabilities. 70 to 80% of his employer’s clients and 35% of its workforce were of Asian ethnic origin and the issue for Mr Redfearn’s employer was that he was a prominent member of the British National Party. Mr Redfearn was dismissed by his employer, but because he had less than one year’s employment (which at that time was the length of service generally needed in order to be able to bring an employment tribunal claim for unfair dismissal), he was not able to make an unfair dismissal claim.Mr Redfearn eventually took his case all the way to the ECHR, which, in a controversial decision, stated that the UK was in breach of its obligations under the European Convention on Human Rights because it did not allow people who had been dismissed on the grounds of their political opinion or affiliation to bring unfair dismissal claims, unless they had one year’s employment.
The Government has now announced, in response to the ECHR judgment, that it intends to amend the laws in relation to unfair dismissal, so that if an employee is dismissed because of their political opinion or affiliation, they will be able to bring an unfair dismissal claim, irrespective of how long they worked for their employer. The change is likely to come into effect in early summer 2013.
Nigel Crebbin, partner in the employment team at commercial law firm Berg, comments, however, that it’s important to remember that the new law will not make dismissal on grounds of political opinion or affiliation automatically unfair.
“When the proposed change comes into effect, anyone dismissed for their political opinion or affiliation will be able to bring an unfair dismissal claim, but it will then be up to the employment tribunal to decide whether the dismissal was a fair and reasonable one. That will largely depend upon the particular circumstances of the case - for example whether the employee’s political opinion or affiliation posed a genuine and significant threat to their employer’s business or ran counter to an ethos on which the employer’s business was based.”
“It’s clear, however, that once the change has come in, employers will need to consider things very carefully before dismissing an employee for holding a political view with which the employer disagrees”.
“Another important point to remember is that while when Mr Redfearn was dismissed, the period of employment generally needed to bring an unfair dismissal claim was one year, that period has increased to two years for employees whose employment began on or after 6th April 2012. While that qualifying period will not apply for dismissals on grounds of political opinion or affiliation, it does (and will) still apply for most other dismissals.”
(The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.)
Berg Solicitors www.berg.co.uk
0161 817 2817