Getting the sack for having the wrong beliefs

The dismissal of a bus driver who supports the BNP shows how fragile freedom of association is today

by Rosamund Cuckston 

Thanks to a ruling by the European Court of Human Rights last year, the UK Employment Rights Act has been amended so that, from the first day of employment, an employee can bring a claim of unfair dismissal if the reason for being sacked was his or her political affiliation or opinions. An individual would not need to have worked somewhere for years before getting this protection.

This should be unalloyed good news. No one should be sacked simply because of their political allegiances; they should be allowed the freedom to associate with whomever they choose. However, the long chain of events leading to this legal change, granted by a body which has placed a variety of get-out clauses around true freedom of association, suggests that a bit of scepticism is required.

The court case that brought about the change involved Arthur Redfearn, a member of the far-right British National Party (BNP). In 2004, Redfearn was elected as a BNP councillor in Bradford. Just before this, he was working as a bus driver for West Yorkshire Transport Services (WYTS), driving buses for disabled adults and children. No one had ever complained about Redfearn, and his manager, an Asian man, viewed him as a good employee. However, on finding out Redfearn was standing as a BNP candidate, his colleagues and WYTS trade-union reps complained, and WYTS gave him other, non-driving duties.

Then, following Refearn’s election as a BNP councillor, WYTS promptly sacked him. Following complaints about the sacking, WYTS attempted to justify Redfearn’s dismissal on health-and-safety grounds, even suggesting that anti-BNP protesters might attack the vehicles in which the disabled adults and children were being conveyed.

By doing this, WYTS actually did opponents of the BNP no favours. It portrayed them as a group of violent morons who would attack a bus carrying disabled Asian children. Of course, policies to exclude far-right groups from political debate - so-called ‘no platform’ policies - have often been justified by the idea that people could be stirred up to racial hatred by the BNP’s ideas. But here it was suggested that anti-racists would lose all control at the sight of a BNP member. The decision of WYTS to sack Redfearn suggests that the authorities do not trust the public in any politically contentious situation.

Redfearn’s response to his dismissal was ironic, given the BNP’s opposition to ‘special pleading’ by ethnic-minority groups under the Race Relations Act: he claimed that he was a victim of racial discrimination.

His claim did not succeed at the Employment Tribunal, but it was successful at the Employment Appeal Tribunal. Serco, the owners of WYTS, then took the case to the Court of Appeal in London to challenge his claims. The court considered Redfearn’s suggestion of interference with his right to freedom of expression and freedom of association (covered by Articles 10 and 11 of the European Convention on Human Rights). Looking at European Court of Human Rights rulings, the Court of Appeal drew the conclusion that Redfearn’s political beliefs were incompatible with the European Convention on Human Rights, which will not uphold rights where doing so would compromise its values of tolerance, non-discrimination and social peace. Nevertheless, Redfearn won an appeal to the European Court of Human Rights itself, giving rise to the court ruling that the UK must change its employment laws allowing claims of unfair dismissal to be brought from day one of an individual’s employment.

The problem is that despite changes to employment law, the ECHR’s promotion of tolerance remains opposed to freedom of association. After all, associations are usually built through some kind of discrimination, of leaving certain things out or refusing membership to certain people. Article 11 of the Convention contains a list of acceptable restrictions on the freedom of association, all of which have the potential to be used spuriously against groups that may not be approved of. These restrictions include ‘health or morals’, ‘national security or public safety’, ‘prevention of disorder’, and so on. It is exactly those caveats about public safety, health and morals, and prevention of disorder, that create the kind of climate in which Serco thought it could sack Redfearn and be able to justify its action. Whatever the change to UK law, those caveats on freedom of conscience and freedom of association remain.

UK politics, already a bland, undifferentiated, uninspiring affair, may be made even worse by the ruling, with organisations now inclined to carry out a ‘risk assessment’ exercise on employing people with controversial views. In the Redfearn case, Serco assumed that it was a case of Redfearn against the rest - the BNP on the one hand and everyone else on the other. That is making a big assumption, but one that is fully supported by the list of reasons under Article 11 by which freedom of association may be arbitrarily restricted.

It seems you are either with non-discrimination, tolerance and social peace or you’re against it, and this puts discussion about a whole range of issues even further away from what is seen as ‘acceptable’. Even political contention itself is highlighted as potentially dangerous under the spirit of Article 11. Given these circumstances, the Redfearn case and the amended law may not protect the right to freedom of association at all.