Warning signs

The case of a BNP councillor who took his claim against unfair dismissal to the European Court of Human Rights is a warning to schools and colleges, says Richard Bird.

There has been a suggestion that one of the reasons the present secretary of state abolished the General Teaching Council for England (GTCE) was its ineffectiveness in dealing with a teacher who was a member of the British National Party (BNP). If this is so, then the case of Redfearn v UK at the European Court of Human Rights (ECtHR) may give him pause for thought.

The facts were simple; the legal argument was not. Mr Redfearn was a driver for Serco. Bradford City Council had contracted out to Serco the public transport of people with mental and physical disabilities. Many clients were of Asian heritage. Mr Redfearn was an exemplary employee. His line manager (of Asian heritage) had put him forward for ‘First-class employee’. He had only been working for the company for less than a year, however, and so he had no automatic right to claim unfair dismissal. And he was dismissed after he was elected as a BNP councillor.

The union Unison argued that its members could be at risk of harm or abuse: Having a driver who was a member of the BNP, which was committed to returning the make-up of the British population to one that is “overwhelmingly white… that existed pre-1948”, might cause unrest within the predominantly Asian neighbourhood and, therefore, create an unsafe transport service. Under pressure, Serco decided to dismiss Mr Redfearn on safety grounds.

Mr Redfearn attempted to take his case to employment tribunal by arguing that he had been discriminated against on grounds of race because the possible complainants were of Asian heritage. He was denied a hearing; neither was the appeal court persuaded, as Mr Redfearn’s race was not the issue. So Mr Redfearn went to the ECtHR and, seven years later, the case has been decided in his favour.

Striking a balance

Mr Redfearn argued that the UK government provided no protection for him under Article 11 of the European Convention on Human Rights (ECHR), which covers freedom of assembly. The Court of Human Rights agreed that the convention applies to private as well as public firms. When we consider the implications, in this time of contracting out and selling offpublic services, we may be grateful for that.

The court agreed that a balance had to be struck between the rights of the individual and the risks to others, in the circumstances of each individual case. But this case was not about the BNP and, regardless, the party is not outlawed under national law. To dismiss someone for their membership of a legal party was capable of striking at the very substance of political rights.

Mr Redfearn had been an exemplary employee. That was fact. The damage to others was speculative. So the case turned on the very narrow issue of whether the UK government provided a means of protecting Mr Redfearn’s rights.

The court concluded that access to an employment tribunal would have protected his rights because the employer would have had to establish “some substantial reason” for dismissal. However, that protection was limited by the provision that this right could not be claimed in the first year of employment. (Now, of course, it is in the first two years.)

Was that provision in itself justifiable? The court said it was, to encourage employers to take on workers without the fear that they would be stuck with unsuitable employees. But the government had waived this in cases of discrimination, for example, on grounds of race. The majority of the court (4:3) ruled that the government should extend exceptions to the one-year rule to other convention rights, including membership of legal political parties.

So, if a political party is legal, mere membership should not be penalised. It does not mean, however, that if members of the party are offensive in what they do or say, and so bring an employer into disrepute, they cannot be dismissed. Similarly, if the views or actions breach the conduct set out in the Teachers’ Standards, a teacher can still be referred to the Teaching Agency.

Genetic theory?

One final interesting issue arose from the views of the minority judges. They argued that the exceptions to the one-year rule could be justified because sex, disability and race were characteristics that were involuntary. This appears to assume a genetic theory of race.

 It is worth noting that this is not the view in British law. In the leading case (Mandla v Dowell-Lee) the House of Lords ruled that a person could join a race by choice or conversion and this was the basis for the more recent judgment in Watkins-Singh v Aberdare Girls’ High School, which gave a student the right to wear a Sikh bracelet, despite the school’s uniform policy. It may seem to be a matter of curiosity only but minority opinions have a habit of coming out of the shadows and biting you. We shall see.

• Richard Bird is ASCL's legal specialist
  

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