Arthur Redfearn, who is white, was a bus driver for Serco (starting December 2003), trading as West Yorkshire Transport Service, for Bradford City Council.
Mummery LJ held that the purpose of the race discrimination rules was to combat the state of mind that breeds intolerance, not protect it.
42 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.
44 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.
45 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.
46 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.
48 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).
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.
52 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.
56 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 United Kingdom, 7 December 1976, § 49, Series A no.
57 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.Three judges dissented.
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.
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.
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.
However, the European Court of Human Rights decision casts doubt on any ability to simply dismiss a person because of their political beliefs.