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ECHR rules on unfair dismissal claim

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The European Court of Human Rights has ruled that an employer, who sacked one of their staff members for being in the BNP, had breached the individual’s human rights.

Serco summarily dismissed Mr Arthur Redfearn, a bus driver, after it was reported in the local paper that he had been elected as a local councillor for the BNP.

Mr Redfearn began his legal fight in August 2004, when he lodged a claim against Serco that his dismissal amounted to racial discrimination. His claim was dismissed by an employment tribunal. They held that any discrimination against him was a result of measures taken by Serco to protect the health and safety of their passengers and carers. The tribunal felt that it was not inconceivable that a vehicle helmed by Mr Redfearn could come under attack from opponents of the BNP.

Mr Redfearn successfully appealed against the decision in July 2005. The appeal tribunal found that Serco had not given due consideration to any alternatives to dismissal, such as switching him to a non-customer facing role. This decision was overturned by the Court of Appeal in May 2006; the court found that Mr Redfearn's claim should be categorised as political discrimination, rather than race discrimination, which was outside anti-discrimination law. 

After being refused leave to appeal to the House of Lords, Mr Redfearn brought his claim to the European Court of Human Rights. The Court ruled in Mr Redfearn’s favour as they found that Serco’s actions had amounted to a breach of Art 11, which creates a right to freedom of assembly and association. The ECHR explained that the law must not only apply to people whose views are "favourably received or regarded as inoffensive, but also to those whose views offend, shock or disturb".

The judgement went on to criticise UK law for limiting Mr Redfearn’s means of recourse to a discrimination claim, Mr Redfearn was unable to make an unfair dismissal claim as he was within his first year of employment.

The court felt that the UK should "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" .  Since Mr Redfearn's dismissal there is now a qualifying period of 2 years before an employee can bring an unfair dismissal claim, unless it relates to one of the limited exceptions to the rule.

It remains to be seen whether there will be any change to the law in the UK relating to unfair dismissal following the decision in this case.

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