Following the news that a South Yorkshire couple have been banned from fostering children because they were members of the Ukip political party, employers are being warned of the dangers of taking similar action with employees following a European human rights ruling which has opened the way to additional safeguards for employees.
The unnamed South Yorkshire couple, who have fostered many children from ethnic minority backgrounds, have spoken of how social workers accused them of belonging to a “racist party” when their Ukip membership became known.
Politicians and commentators have condemned the action of Rotherham council, and it’s likely to add to confusion over political affiliations as it comes hard on the heels of a judgement from theEuropean Court of Human Rights (ECtHR).
Earlier this month, the ECtHR ruled that the UK is in violation of the European Convention on Human Rights by not providing adequate protection to employees who are dismissed on the grounds of their political beliefs.
The ruling, which is likely to lead to a change in the law for UK employers, was given in a case brought by bus driver Mr Redfearn. He had been working for Serco under a contract with Bradford City Council to transport disabled children and adults, when he successfully stood as a candidate for the BNP in local elections. Soon after the election he was summarily dismissed.
Serco said that they believed “his employment would present a risk to the health and safety of its employees and passengers”, and that he could cause damage to their reputation which might jeopardise the contract they held with the council.
Mr Redfearn took action against Serco, pointing to his exemplary employment record. His rights would have been protected if he had qualified for unfair dismissal, but he did not have sufficient service to bring an unfair dismissal claim, and his attempted race claim also failed.
As a result, he brought a case to the European Court of Human Rights. The Court ruled by a majority in his favour, saying the UK was failing to protect the individual’s right to freedom of assembly under Article 11 of the European Convention on Human Rights, because anyone with insufficient qualifying service for unfair dismissal claims had no right to challenge a dismissal arising from their political beliefs. The judges said that Article 11 must apply equally, whether or not those include views which may offend, shock or disturb.
“The case heard by the European Court was not about the rights or wrongs of Mr Redfearn’s dismissal, it was simply ruling on what they saw as a deficiency in UK law, but one that could have implications for employers,” said employment law expert David Hetherington of Greenwich based Solicitors Grant Saw .
“The pressure is now on the UK Government to introduce a change in the law to make sure that employees’ rights will be adequately protected in future. We may see an additional exception introduced to the unfair dismissal qualifying period, or through the opportunity to bring a free-standing claim where there are grounds of political opinion or affiliation.”
References:
Redfearn v Serco [2006] EWCA Civ 659
Redfearn v The United Kingdom (Application no. 47335/06)
http://www.bailii.org/eu/cases/ECHR/2012/1878.html
http://www.guardian.co.uk/politics/2012/nov/24/ukip-foster-parents-children-removed-social-workers
ENDS
This is not legal advice; it is intended to provide information of general interest about current legal issues.