In the case of Redfearn v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Nicolas Bratza,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 16 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
47335/06) against the United Kingdom of Great Britain and Northern Ireland
lodged with the Court under Article 34 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (“the Convention”) by a British national,
Mr Arthur Collins Redfearn (“the applicant”), on 16 November 2006.
The applicant was represented by Mr P. Chapman of
Mitchells Solicitors, a lawyer practising in York. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the
Foreign and Commonwealth Office.
The applicant complained, among other things,
that he had been dismissed on account of his political views and membership of
a political party.
On 7 January 2009 the Acting President of the
Fourth Section decided to communicate the complaints concerning Articles 10, 11
and 14 of the Convention to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1948 and lives in Bradford.
The applicant was employed by Serco Limited
(“Serco”) from 5 December 2003 to his dismissal on 30 June 2004. Serco
provided transport to local authorities, including Bradford City Council.
The applicant, who is white British, was employed
formerly as a driver’s escort and latterly as a driver. As such, he was
responsible for transporting children and adults with physical and/or mental
disabilities within the Bradford area. The majority of his passengers were
Asian in origin. There had been no complaints about his work or his conduct at
work and his supervisor, who was of Asian origin, had nominated him for the
award of “first-class employee”.
On 26 May 2004 a local newspaper article
published in Bradford and the surrounding areas identified the applicant as a
candidate for the British National Party (“the BNP”) in the forthcoming local
elections. On the same day, the applicant was temporarily assigned to deliver
mail to local council offices.
At the relevant time the BNP only extended
membership to white nationals. According to its constitution it was:
“wholly opposed to any form of integration between British and
non-European peoples. It is therefore committed to stemming and reversing the
tide of non-white immigration and to restoring, by legal changes, negotiation
and consent, the overwhelmingly white makeup of the British population that
existed in Britain prior to 1948.”
On 27 May 2004 UNISON, the public sector workers’
trade union, sent a letter to Serco stating that many of its members found the
applicant’s continued employment a “significant cause for concern, bearing in
mind the BNP’s overt and racist/fascist agenda.” The letter advised Serco that 70-80
percent of its customer base and 35 percent of its workforce were of Asian
origin. UNISON asked that Serco take immediate action to ensure its members
were not subjected to racial hatred. Another trade union, GMB, and a number of employees
also made representations to Serco about the applicant’s continued employment.
On 15 June 2004 the applicant was elected as a
local councillor for the BNP. After taking legal advice Serco summarily
dismissed him on 30 June 2004. Serco cited, inter alia, potential
health and safety risks as the applicant’s continued employment would give rise
to considerable anxiety among passengers and their carers. It also expressed
concern that the applicant’s continued employment could jeopardise its
reputation and possibly lead to the loss of its contract with Bradford City
Council.
Ordinarily, one year’s service is required
before an employee can bring an action for unfair dismissal under the
Employment Rights Act 1996 (“the 1996 Act”), although this qualifying period
does not apply where the dismissal was on grounds of pregnancy, race, sex or
religion. The applicant therefore lacked sufficient continuous service to bring
an action for unfair dismissal. However, on 12 August 2004 he lodged a
statutory claim of race discrimination in the Employment Tribunal pursuant to
the Race Relations Act 1976 (“the 1976 Act”).
The applicant claimed that he had been
unlawfully discriminated against as his dismissal constituted less favourable
treatment on racial grounds. The racial grounds relied on were those of the passengers
and employees of Serco who were of Asian origin. He further argued that since
the BNP was a “whites-only” party, his dismissal also constituted indirect
racial discrimination.
The Employment Tribunal gave judgment on 2
February 2005. It noted Serco’s concerns that the applicant’s continued
employment might lead to difficulties with other employees; damage its
relationship with the unions; lead to attacks on Serco’s minibuses which would
jeopardise the health and safety of Serco’s staff, its vulnerable passengers,
and the applicant himself; cause considerable anxiety amongst Serco’s
passengers and those relatives/carers entrusting vulnerable passengers to its
care; and damage its reputation so as potentially to place at risk existing
contracts and future bids for work in the public sector and elsewhere.
The Employment Tribunal dismissed
the claim of direct discrimination as it was satisfied that if any
discrimination existed against the claimant it was not on racial grounds but
rather on health and safety grounds. The Tribunal also dismissed
the claim of indirect discrimination on the ground that the applicant’s
dismissal was a proportionate means of achieving a legitimate aim, namely the maintenance
of health and safety.
The applicant lodged an appeal with the
Employment Appeal Tribunal. On 27 July 2005 his appeal was upheld on the ground
that the Tribunal had erred in its construction of the phrase “on racial
grounds” by failing to interpret its meaning broadly and had not indicated how
it had come to the conclusion that the applicant’s dismissal was a
proportionate means of achieving the aim of ensuring health and safety because,
inter alia, there had been no consideration of any alternatives to
dismissal.
On 9 September 2005 Serco was granted permission
to appeal to the Court of Appeal.
On 25 May 2006 the Court of Appeal allowed Serco’s
appeal and restored the order of the Employment Tribunal. Mummery LJ found the
applicant’s submission that he had been subjected to direct race discrimination
to be wrong in principle and inconsistent with the purposes of the legislation.
In rejecting the claim of direct discrimination,
the Court of Appeal noted that:
“Mr Redfearn was treated less favourably not on the ground that
he was white, but on the ground of a particular non-racial characteristic
shared by him with a tiny proportion of the white population, that is
membership of and standing for election for a political party like the BNP.
Serco was not adopting a policy which discriminated on the basis of a dividing
line of colour or race. Serco would apply the same approach to a member of a
similar political party, which confined its membership to black people. The
dividing line of colour or race was not made by Serco, but by the BNP which
defines its own composition by colour or race. Mr Redfearn cannot credibly make
a claim of direct race discrimination by Serco against him on the ground that
he is white by relying on the decision of his own chosen political party to
limit its membership to white people. The BNP cannot make a non-racial
criterion (party membership) a racial one by the terms of its constitution
limiting membership to white people. Properly analysed Mr Redfearn’s complaint
is of discrimination on political grounds, which falls outside the
anti-discrimination laws.”
In rejecting the claim of indirect
discrimination, the following was noted:
“For indirect discrimination ... it is necessary to identify a ‘provision,
criterion or practice’ which Serco has applied or would apply equally to
persons not of the same race or colour. ... Mr Redfearn ... failed to present
the tribunal with a case, which satisfied the requisite elements of a claim for
indirect race discrimination and upon which the tribunal could properly make a
finding of indirect race discrimination....
The employment tribunal appears to have attempted itself a
version of a ‘provision, criterion or practice’ in paragraph 5.6 of its
decision (see paragraph 28 above). However, it is formulated too narrowly
(membership of the BNP) to be meaningful. A provision of ‘membership of
the BNP’ could not be applied to a person who was not of the same colour as Mr
Redfearn, because only persons of the same colour as him (white) are eligible
to be members of the BNP. A more general and meaningful provision along similar
lines would be one applying to membership of a political organisation like the
BNP, which existed to promote views hostile to members of a different colour
than those that belonged to the organisation. If such a provision were applied,
however, it would not put persons of the same race as Mr Redfearn ‘at a
particular disadvantage’ when compared with other persons within section 1(1A)
of the 1976 Act. All such political activists would be at the same
disadvantage, whatever colour they were.”
Lastly, with regard to the applicant’s
contention that he had been subjected to less favourable treatment arising from
membership of a political party contrary to his Convention rights under
Articles 9, 10, 11 and 14 and that this should have been taken into account in
deciding whether indirect discrimination had been justified, the Court of
Appeal stated that:
“The 1998 Act does not assist Mr Redfearn in this case. He is
not entitled to make a claim under it as Serco is not a public authority.
Section 3 of the 1998 Act does not assist, as there is no respect in which the
relevant provisions of the 1976 Act are incompatible with the Convention
rights. As for justification under the 1976 Act I have already explained that
it does not arise, as no case of indirect discrimination has been made out.”
The applicant was refused leave to appeal to the
House of Lords.
II. RELEVANT DOMESTIC LAW
A. The Employment Rights Act
1996
Under section 94(1) of the Employment Rights Act
1996, an employee has the right not to be unfairly dismissed by his employer.
By section 98(1), an employer must show a reason for a dismissal falling
within a category set out in section 98(2), which includes “conduct” or “some
other substantial reason of a kind such as to justify the dismissal of an
employee holding the position which the employee held”.
Section 98(4) deals with fairness:
“Where the employer has fulfilled the requirements of
subsection (1), the determination of the question whether the dismissal is fair
or unfair (having regard to the reason shown by the employer) -
(a) depends on whether in the circumstances (including the size
and administrative resources of the employer’s undertaking) the employer acted
reasonably or unreasonably in treating it as a sufficient reason for dismissing
the employee, and
(b) shall be determined in accordance with equity and the
substantial merits of the case.”
However, paragraph 106 provides as follows:
“(1) Section 94 does not apply to the dismissal of
an employee unless he has been continuously employed for a period of not less
than one year ending with the effective date of termination.”
. Section
108(3) of the Employment Rights Act provides a wide variety of exceptions from
the one-year qualifying period, many of which derive from the United Kingdom’s
implementation of European Community legislation in the field of employment.
These exceptions include situations in which an employee has been dismissed on
grounds of pregnancy or taking parental leave, refusing to comply with a
requirement imposed in contravention of the Working Time Regulations 1998, or
where the employee has made a public interest disclosure against the employer.
Moreover, applicants alleging that they were dismissed on account of their
race, sex or religion are also exempt from the one-year qualifying period.
B. The Race Relations Act 1976
Section 1 (1) (1) of the Race Relations Act 1976
states the following:
“A person discriminates against another in any circumstances
relevant for the purposes of any provision of this Act if-
(a) on racial grounds he treats that other less favourably than
he treats or would treat other persons.”
Section 1 A of the Race Relations Act 1976 states:
“ A person also discriminates against another if, in any
circumstances relevant for the purposes of any provision referred to in
subsection (IB), he applies to that other provision, criterion or practice
which he applies or would apply equally to persons not of the same race or
ethnic or national origins as that other, but
(a) which puts or would put persons of the same race or ethnic
or national origins as that other at a particular disadvantage when compared
with other persons;
(b) which puts that other at that disadvantage, and
(c) which he cannot show to be a proportionate means of
achieving a legitimate aim.”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 10 AND 11 OF
THE CONVENTION
The applicant complained of a violation of his
rights under Articles 10 and 11 of the Convention. He submitted that, in
choosing to become a member of the BNP and to stand for election, he was
engaging both his right to freedom of expression pursuant to Article 10 of the
Convention and his right to freedom of assembly and association pursuant to
Article 11 and that his dismissal had disproportionately interfered with his
exercise of those rights.
Article 10 of the Convention provides as
follows:
“1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and regardless of
frontiers. This Article shall not prevent states from requiring the licensing
of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of
the judiciary.”
Article 11 provides as follows:
“1. Everyone has the
right to freedom of peaceful assembly and to freedom of association with
others, including the right to form and to join trade unions for the protection
of his interests.
2. No restrictions shall be placed on the exercise of
these rights other than such as are prescribed by law and are necessary in a
democratic society in the interests of national security or public safety, for
the prevention of disorder or crime, for the protection of health or morals or
for the protection of the rights and freedoms of others. This Article shall not
prevent the imposition of lawful restrictions on the exercise of these rights
by members of the armed forces, of the police or of the administration of the
State.”
The Government contested these arguments.
A. Admissibility
The Court notes that these
complaints are not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further notes that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
As the Court has noted, the applicant relies on
both Article 10 and Article 11 of the Convention. However, the Court considers
it more appropriate to examine his complaints under Article 11 of the
Convention, but it will do so in the light of Article 10.
1. The parties’ submissions
(a) The applicant
The applicant submitted that for an employee to
lose his job for exercising his right to freedom of association struck at the
“very substance” of that right. Consequently, he contended that the Government
had a positive obligation under Article 11 of the Convention to enact legislation
which would have afforded him protection from the termination of his employment
by Serco on the ground of his involvement with the BNP. However, since he had
less than one year’s qualifying service, he was unable to bring a claim for
unfair dismissal under the Employment Rights Act 1996.
The applicant submitted that fundamental rights
must be effective and available from the first day of employment. While he
understood that it might be appropriate to allow an employer a certain time in
which to assess the conduct or capability of an employee, he argued that this
should not apply in relation to discrimination on protected grounds. In fact,
he submitted that freedom of association would be illusory if it could only be
exercised after a certain period of service.
The applicant further submitted that even if he
had had more than one year’s qualifying service, his employer would have been
able to rely on his political involvement as being “some other substantial
reason” to justify the termination of his employment.
(b) The Government
The Government contended that Article 11 did not
impose any positive obligation to enact legislation of the kind suggested by
the applicant. They submitted that in assessing the extent, if any, of the
State’s positive obligation, the Court should consider whether the nature of
the interference struck at the “very substance” of the right or freedom
concerned (Young, James and Webster v. the United Kingdom, 13 August
1981, § 55, Series A no. 44, Sørensen and Rasmussen v. Denmark [GC], nos. 52562/99 and 52620/99, § 54, ECHR 2006-I). However, it did not
necessarily follow from the fact that someone was dismissed from their
employment as a consequence of manifesting certain political views that there would
be an interference with their rights under Article 11 which struck at the very
substance of the right so as to engage the State’s positive obligation. In this
regard the Government relied, by analogy, on Stedman v the United Kingdom, application no. 29107/95, decision of 9 April 1997, in which the Commission
rejected as inadmissible a complaint under Article 9 of the Convention by a
Christian applicant who had been dismissed because she refused to work on
Sundays. The Commission noted that there had been no pressure on the applicant
to change her religious views or to prevent her from manifesting her religion
or beliefs. It followed that the Government could not be expected “to have
legislation that would protect employees against such dismissals by private
employers”.
In the alternative, the Government contended
that if a positive obligation existed, it was satisfied by the provisions of
the 1996 Act. The Government submitted that in the United Kingdom,
where the qualifying period of one year’s service has been accrued, the 1996 Act
would generally afford protection against dismissal on the grounds of political
involvement, unless the employer could demonstrate that the involvement related
to the capacity of the employee for performing the work in question or
constituted “some other substantial reason” for the dismissal (see section
98(2) of the 1996 Act). If an employer was able to identify one of these two
criteria, a fact-sensitive balancing exercise would have to be carried out.
However, there was nothing to suggest that such a balancing exercise would be
incompatible with the qualified rights under Article 11.
Finally, the Government submitted that the
one-year qualifying period which an employee must serve before statutory
protection is obtained in relation to dismissal pursued a legitimate aim,
namely the creation of greater employment opportunities by encouraging
companies to recruit. Indeed, in the case of R v. Secretary of State
for Employment ex parte Seymour-Smith and Another [2000] UKHL 12 the House
of Lords held that it was reasonable of the Secretary of State to consider that
the risks of unjustified involvement with tribunals in unfair dismissal cases
and the cost of such involvement could deter employers from giving more people
jobs. Consequently, the Government submitted that the one-year qualifying
period could not be said to fall outside the State’s margin of appreciation.
(c) The Third Party Intervener: The Equality and
Human Rights Commission
The Equality and Human Rights Commission (“the
Commission”) submitted that even if the applicant had been employed in the
public sector, his dismissal would have been justified as it was clear that a
State could lawfully place restrictions on the freedom of association of
employees where it was necessary in a democratic society, for example to
protect the rights of others or to maintain the political neutrality of civil
servants (Van der Heijden v. the Netherlands, app. no. 11002/84, 8
March 1985 and Kern v. Germany, app. no. 26870/04, 29 May 2007). The
question whether a dismissal would breach Article 11 turned on a number of
factors, including the role of the employee, the degree of contact he or she had
with the public and whether or not it involved public trust and confidence,
whether the employee had direct contact with or provided services to
individuals against which the relevant group or party had expressed hostility, the
extent of his involvement with the party or group, the effect his continued
employment would have on the employer’s reputation, and the employee’s conduct
during the period of employment.
In the Commission’s view, a worker’s active
membership of a party such as the BNP, if it became public, would impact on the
employer’s provision of services regardless of whether or not there were any
complaints about the manner in which he did his job. The fact that the
applicant was in direct contact with services users, a significant proportion
of whom were of an ethnic or religious group towards which the BNP had
expressed hostility, would render any interference with his rights under
Article 11 proportionate.
Moreover, the Commission submitted that to
require disabled Asian adults and Asian parents of disabled children to entrust
themselves or their children to an elected BNP official in order to utilise
public authority transport services would threaten to breach the rights of those
service users. In this regard, the Commission noted that service providers were
obliged to comply with the 1976 Act which prohibited race discrimination and
racial harassment against employers and service users.
2. The Court’s assessment
Although the essential object of Article 11 is
to protect the individual against arbitrary interference by public authorities
with the exercise of the rights protected, the national authorities may in
certain circumstances be obliged to intervene in the relationships between
private individuals by taking reasonable and appropriate measures to secure the
effective enjoyment of the right to freedom of association (see, mutatis
mutandis, Plattform “Ärzte für das Leben” v. Austria, 21 June 1988,
§§ 32-34, Series A no. 139, Gustafsson v. Sweden, 25 April
1996, § 45, Reports of Judgments and Decisions 1996-II, and Fuentes
Bobo v. Spain, no. 39293/98, § 38, 29 February 2000).
Therefore, although the matters about which the
applicant complained did not involve direct intervention or interference by the
State, the United Kingdom’s responsibility will be engaged if these matters
resulted from a failure on its part to secure to the applicant under domestic
law his right to freedom of association. In other words there is also a
positive obligation on the authorities to provide protection against dismissal
by private employers where the dismissal is motivated solely by the fact that
an employee belongs to a particular political party (or at least to provide the
means whereby there can be an independent evaluation of the proportionality of
such a dismissal in the light of all the circumstances of a given case).
The Court has recognised that in certain
circumstances an employer may lawfully place restrictions on the freedom of
association of employees where it is deemed necessary in a democratic society,
for example to protect the rights of others or to maintain the political
neutrality of civil servants (see, for example, Ahmed and Others v. the
United Kingdom, 2 September 1998, § 63, Reports of Judgments and
Decisions 1998-VI). In view of the nature of the BNP’s policies (see
paragraph 9, above), the Court recognises the difficult position that Serco may
have found itself in when the applicant’s candidature became public knowledge.
In particular, it accepts that even in the absence of specific complaints from
service users, the applicant’s membership of the BNP could have impacted upon
Serco’s provision of services to Bradford City Council, especially as the
majority of service users were vulnerable persons of Asian origin.
However, regard must also be had to the fact
that the applicant was a “first-class employee” (see paragraph 7, above) and, prior
to his political affiliation becoming public knowledge, no complaints had been
made against him by service users or by his colleagues. Nevertheless, once he
was elected as a local councillor for the BNP and complaints were received from
unions and employees, he was summarily dismissed without any apparent
consideration being given to the possibility of transferring him to a
non-customer facing role. In this regard, the Court considers that the case can
readily be distinguished from that of Stedman v. the United Kingdom
(cited above), in which the applicant was dismissed because she refused to
work the hours required by the post. In particular, the Court is struck by the
fact that these complaints, as summarised in paragraph 10, were in respect of
prospective problems and not in respect of anything that the applicant had done
or had failed to do in the actual exercise of his employment.
Moreover, although the applicant was working in
a non-skilled post which did not appear to have required significant training
or experience (compare, for example, Vogt v. Germany, 26 September 1995,
Series A no. 323, and Pay v. the United Kingdom, no. 32792/05, 16
September 2008), at the date of his dismissal he was fifty-six years old and it
is therefore likely that he would have experienced considerable difficulty
finding alternative employment.
Consequently, the Court accepts that the
consequences of his dismissal were serious and capable of striking at the very
substance of his rights under Article 11 of the Convention (Sørensen and
Rasmussen v. Denmark [GC], nos. 52562/99 and 52620/99, §§ 61 and 62,
ECHR 2006-I and Young, James and Webster v. the United Kingdom, cited
above, § 55). The Court must therefore determine whether in the circumstances
of the applicant’s case a fair balance was struck between the competing
interests involved, namely the applicant’s Article 11 right and the risk, if
any, that his continued employment posed for fellow employees and service
users. It is also to be borne in mind that what the Court is called upon to do
in this case is not to pass judgment on the policies or aims, obnoxious or
otherwise, of the BNP at the relevant time (the BNP is, in any case, not a
party to these proceedings), but solely to determine whether the applicant’s
rights under Article 11 were breached in the particular circumstances of the
instant case. In this connection it is also worth bearing in mind that, like
the Front National-Nationaal Front in Féret v. Belgium (no.
15615/07, 16 July 2009) the BNP was not an illegal party under domestic law nor
were its activities illegal (see, by way of contrast, Hizb Ut-Tahrir and
Others v. Germany (dec.) no. 31098/08, 12 June 2012).
The Court has accepted that Contracting States
cannot guarantee the effective enjoyment of the right to freedom of association
absolutely (Plattform “Ärzte für das Leben” v. Austria, cited above, §
34). In the context of the positive obligation under Article 11, it has held
that where sensitive social and political issues are involved in achieving a
proper balance between the competing interests and, in particular, in assessing
the appropriateness of State intervention, the Contracting States should enjoy
a wide margin of appreciation in their choice of the means to be employed (Gustafsson
v. Sweden, cited above, § 45).
Therefore, the principal question for the Court
to consider is whether, bearing in mind the margin of appreciation afforded to
the respondent State in this area, the measures taken by it could be described
as “reasonable and appropriate” to secure the applicant’s rights under Article 11
of the Convention (see, mutatis mutandis, Plattform “Ärzte für das
Leben” v. Austria, cited above, §§ 32 - 34, Gustafsson v. Sweden, cited
above, § 45, and Fuentes Bobo v. Spain, cited above, § 38).
In the opinion of the Court, a claim for unfair
dismissal under the 1996 Act would be an appropriate domestic remedy for a
person dismissed on account of his political beliefs or affiliations. Once such
a claim is lodged with the Employment Tribunal, it falls to the employer to
demonstrate that there was a “substantial reason” for the dismissal. Following
the entry into force of the Human Rights Act 1998, the domestic courts would
then have to take full account of Article 11 in deciding whether or not the
dismissal was, in all the circumstances of the case, justified.
However, as the applicant had not been employed
for the one-year qualifying period at the date of his dismissal, he was unable
to benefit from this remedy. He therefore brought a race discrimination claim
under the 1976 Act but this claim was rejected by the Court of Appeal, which
found that he had not been discriminated against on account of his race. The
Court observes that the 1976 Act is concerned only with direct and indirect
race discrimination. Although it would not go so far as to state that it
amounted to a wholly ineffective remedy - indeed, it recalls that the applicant’s
claim succeeded before the Employment Appeal Tribunal - the Court considers
that the 1976 Act was not primarily intended to cover a situation such as the
present one and a liberal interpretation of the relevant provisions was
required in order for the domestic courts to find in the applicant’s favour.
Consequently, the Court does not consider that the 1976 Act offered the
applicant any protection against the interference with his rights under Article
11 of the Convention.
There is therefore no doubt that the applicant
suffered a detriment as a consequence of the one-year qualifying period as it
deprived him of the only means by which he could effectively have challenged
his dismissal at the domestic level on the ground that it breached his
fundamental rights. It therefore falls to the Court to consider whether the
respondent State, in including the one-year qualifying period in the 1996 Act,
could be said to have taken reasonable and appropriate measures to protect the
applicant’s rights under Article 11.
The Court observes that the one-year qualifying
period was included in the 1996 Act because the Government considered that the
risks of unjustified involvement with tribunals in unfair dismissal cases and
the cost of such involvement could deter employers from giving more people
jobs. Thus, the purpose of the one-year qualifying period was to benefit the
domestic economy by increasing labour demand. The Court has received no
submissions on the length of the qualifying period but it accepts that one year
would normally be a sufficient period for an employer to assess the suitability
of an employee before he or she became well-established in a post.
Consequently, in view of the margin of appreciation afforded to Contracting
States in formulating and implementing social and economic policies, the Court
considers that it was in principle both reasonable and appropriate for the
respondent State to bolster the domestic labour market by preventing new
employees from bringing unfair dismissal claims.
However, it observes that in practice the
one-year qualifying period did not apply equally to all dismissed employees.
Rather, a number of exceptions were created to offer additional protection to
employees dismissed on certain prohibited grounds, such as race, sex and
religion, but no additional protection was afforded to employees who were
dismissed on account of their political opinion or affiliation.
The Court has previously held that political
parties are a form of association essential to the proper functioning of
democracy (United Communist Party of Turkey and Others v. Turkey, 30
January 1998, § 25, Reports of Judgments and Decisions 1998-I). In view
of the importance of democracy in the Convention system, the Court considers
that in the absence of judicial safeguards a legal system which allows
dismissal from employment solely on account of the employee’s membership of a
political party carries with it the potential for abuse.
Even if the Court were to acknowledge the
legitimacy of Serco’s interest in dismissing the applicant from its workforce
having regard to the nature of his political beliefs, the policies pursued by
the BNP and his public identification with those policies through his election
as a councillor, the fact remains that Article 11 is applicable not only to
persons or associations whose views are favourably received or regarded as
inoffensive or as a matter of indifference, but also those whose views offend,
shock or disturb (see, mutatis mutandis, Handyside v. the United
Kingdom, 7 December 1976, § 49, Series A no. 24, and Jersild v.
Denmark, 23 September 1994, § 37, Series A no. 298). For the Court,
what is decisive in such cases is that the domestic courts or tribunals be
allowed to pronounce on whether or not, in the circumstances of a particular
case, the interests of the employer should prevail over the Article 11 rights
asserted by the employee, regardless of the length of the latter’s period of
employment.
Consequently, the Court considers that it was
incumbent on the respondent State to 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 or through a
free-standing claim for unlawful discrimination on grounds of political
opinion or affiliation. As the United Kingdom legislation is deficient in this
respect, the Court concludes that the facts of the present case give rise to a
violation of Article 11 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 9 OF THE
CONVENTION
The applicant also alleged that his dismissal
gave rise to a breach of Article 9 of the Convention. Article 9 provides as
follows:
“1. Everyone has the right to freedom of thought,
conscience and religion; this right includes freedom to change his religion or
belief and freedom, either alone or in community with others and in public or
private, to manifest his religion or belief, in worship, teaching, practice and
observance.
2. Freedom to manifest one’s religion or beliefs shall be
subject only to such limitations as are prescribed by law and are necessary in
a democratic society in the interests of public safety, for the protection of
public order, health or morals, or for the protection of the rights and
freedoms of others.”
59. The
Court has examined this complaint but finds, in the light of all the material
in its possession and in so far as the matters complained of are within its
competence, that it does not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols.
. It
follows that this part of the application is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
The applicant further complained that he had been denied
access to an effective remedy in respect of his Convention complaints. Article
13 of the Convention provides as follows:
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
The Court reiterates its case-law to the effect
that Article 13 does not require the law to provide an effective remedy where
the alleged violation arises from primary legislation (see James and Others
v. the United Kingdom, 21 February 1986, § 85, Series A no. 98). In any
event, the matter raised by the applicant has been adequately addressed in the
Court’s response to his Article 11 complaint.
. It
follows that this part of the application is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE
CONVENTION READ TOGETHER WITH ARTICLES 10 AND 11
Lastly, the applicant complained that under United Kingdom legislation, compensation for discrimination on the grounds of sex, race,
disability, sexual orientation, religious belief and age is uncapped, whereas
there is a statutory limit for unfair dismissal. Moreover, he complained that
there was no qualifying period in respect of such discrimination claims.
Article 14 of the Convention provides as
follows:
“The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other
status.”
The Court does not
consider the applicant’s complaints under Article 14 to be manifestly
ill-founded within the meaning of Article 35 §§ 3 of the Convention. It further
notes that they are not inadmissible on any other grounds and must, therefore,
be declared admissible. However, having regard to its findings under
Article 11 (see paragraphs 42 - 57 above), the Court does not find it necessary
to examine whether or not there has also been a violation of Article 14 of the
Convention read together with Articles 10 and 11.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.”
The applicant did not submit a claim for just
satisfaction.
FOR THESE REASONS, THE COURT
1. Declares unanimously the complaints
concerning Articles 10 and 11 of the Convention alone and in conjunction with
Article 14 admissible and the remainder of the application admissible;
2. Holds by four votes to three that there
has been a violation of Article 11 of the Convention;
3. Holds unanimously that it is not necessary
to examine whether there has also been a violation of Article 14 of the
Convention read together with Articles 10 and 11.
Done in English, and notified in writing on 6 November 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech
Garlicki
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the joint partly dissenting opinion of
Judges Bratza, Hirvelä and Nicolaou is annexed to this judgment.
L.G.
F.A.
JOINT PARTLY DISSENTING OPINION
OF JUDGES BRATZA, HIRVELÄ AND NICOLAOU
1. We regret that we are unable to share the view
of the majority that there was a violation of Article 11 of the Convention in
the present case. In our view, the United Kingdom was not in breach of its
obligations under the Article by reason of any failure to protect the applicant
against his dismissal from his employment on grounds of his political opinion.
2. Despite differing in the result, there is much
in the judgment with which we are in agreement.
(a) As noted in the judgment, the case concerns
exclusively the positive obligations of the State to secure through its legal
system the rights guaranteed by Article 11. The applicant’s employer, Serco,
was a private limited company and the applicant’s dismissal by the company did
not involve any direct intervention or interference on the part of the United Kingdom. The Court has accepted that Contracting States cannot guarantee the
effective enjoyment of Article 11 rights absolutely. In assessing whether such
positive obligations arise and, if so, to what extent, the Court must determine
whether a fair balance was struck within the legal system between the competing
interests of the individual and the community as a whole. In a case where
sensitive social, economic and political issues are involved, in achieving a
proper balance between those interest and, in particular, in assessing the
appropriateness of State intervention, the Contracting States enjoy a wide
margin of appreciation in the choice of means to be employed.
(b) It is accepted in the judgment that a claim for
unfair dismissal under the 1996 Act affords effective protection against the
dismissal of a person on account of his political beliefs or affiliations,
imposing as it does an obligation on the employer to demonstrate, inter alia,
that there was a substantial reason of a kind such as to justify the dismissal
of the employee.
(c) It is also accepted that a fair balance is not
upset by the inclusion in the 1996 Act of a one-year qualifying period, the
purpose of which is to create greater employment opportunities by encouraging
companies to recruit without the risk of being subjected to unwarranted claims
by employees for unfair dismissal during the early months of employment. Like
the House of Lords in the case of R v. Secretary of State for Employment, ex
parte Seymour-Smith and another, we consider that it was and is in principle
reasonable and appropriate for the State to lay down a qualifying period and
that the period set in the United Kingdom cannot be said to fall outside any
acceptable margin of appreciation (see, in the context of a complaint under
Article 6 of the Convention, Stedman v. the United Kingdom, application no.
29107/95, decision of 9 April 1997, in which a restriction on access to an
industrial tribunal for unfair dismissal to employees of two years’ standing
was held to pursue a legitimate aim and not to be arbitrary or to impair the
very essence of the right of access to a court). The justification for a
qualifying period is not in our view affected by the fact that in an individual
case there may be no justifiable grounds for the dismissal or that the
dismissal may lead to particular financial or other hardship on the part of the
employee concerned. It is the balance struck by the legal system as a whole and
not the effect of dismissal in any individual case to which regard must be had.
3. Where we part company with the majority is in
the broad assertion in the judgment that, even within the qualifying period,
there exists a positive obligation on the authorities under the Convention “to
provide protection against dismissal by private employers where the dismissal
is motivated solely by the fact that an employer belongs to a particular
political party (or at least to provide the means whereby there can be an
independent evaluation of the proportionality of such a dismissal in the light
of all the circumstances of a given case)” (paragraph 43). In this regard
reliance is placed by the majority on the fact that in the United Kingdom the
qualifying period is not absolute, certain exceptions having been created in
the case, inter alia, of claims by an employee that he has been dismissed on
grounds of race, sex or religion but that no exception has been made in the
case of a claim of dismissal on grounds of political opinion. It is argued that
it is incumbent on the United Kingdom to protect employees, including those
with less than one year’s service, from dismissal on grounds of political
opinion, either through the creation of a further exception to the one-year
qualifying period or through the creation of a free-standing claim for unlawful
discrimination on grounds of political opinion.
4. We are unable to accept the argument that,
having created certain exceptions to the requirement of employment for the
qualifying period, the State was obliged to create a further exception in the
case of dismissal on grounds of political opinion, still less that the
Convention imposes a positive obligation to create a free-standing cause of
action, without any temporal limitation. This, in our view, is to press the positive
obligation too far. In a complex area of social and economic policy, it is in
our view pre-eminently for Parliament to decide what areas require
special protection in the field of employment and the consequent scope of any
exception created to the general rule. The choice of Parliament of race, sex
and religion as grounds requiring special protection can in no sense be seen as
random or arbitrary. In this respect we attach importance to the fact that
certain grounds of difference of treatment have traditionally been treated by
the Court itself as “suspect” and as requiring very weighty reasons by way of
justification. These grounds include differences of treatment on grounds of
race (D.H. and others v the Czech Republic [GC] no. 57325/10, ECHR 2007),
sex (Abdulaziz, Cabales and Balkandali v the United Kingdom, 28 May 1985,
Series A No. 94), religion (Hoffmann v Austria, 23 June 1993, Series A no.
94) and nationality and ethnicity (Timishev v Russia, nos. 55762/00
and 55974/00, ECHR 2005-XII). In addition, the Court has indicated that
differences of treatment which are based on immutable characteristics will as a
general rule require weightier reasons in justification than differences of
treatment based on a characteristic or status which contains an element of
choice (Bah v the United Kingdom, no. 56328/07, 27 September 2011).
5. Doubtless the balance could have been struck by
the legislator in a different way and further exceptions to the qualifying
period might have been created to cover claims for dismissal of other grounds,
including that of political opinion or political affiliation. However, this is
a different question from the one which the Court is required to determine,
namely whether the United Kingdom exceeded its wide margin of appreciation in
not extending the list of exceptions or in not creating a free-standing cause
of action covering dismissal on grounds of such opinion or affiliation.
6. Since, for the reasons given above, we see a
justification for treating differently the comparators relied on by the
applicant under Article 14, we have voted in favour of the conclusion in the
judgment that it is not necessary to examine separately whether there was also
a violation of Article 14 read in conjunction with Article 11.
