In Redfearn v United Kingdom, the European Court of Human Rights (ECtHR) held that the UK was under a positive obligation to enact legislation to protect employees from dismissal on the grounds of their political affiliations. In his previous post, Alan Bogg, outlined the facts and key findings. In this post he considers some of the important legal points arising from the case.
(a) What about ASLEF v United Kingdom? It will be recalled that in ASLEF the ECtHR upheld the trade union’s Art 11 right to disassociate from BNP members whose political orientations were anathema to those of the trade union. Is there any inconsistency between ASLEF and Redfearn, given that in Redfearn the employer’s negative freedom of association was determined to be subject to legal restrictions especially where the sole reason for dismissal was the employee’s membership of a political party? It is submitted that there is no inconsistency. In ASLEF the limits of the trade union’s right to exclude individuals from membership would be breached if rules were unreasonable or arbitrary or if the consequences of exclusion resulted in exceptional hardship to the excluded individual. Otherwise, the trade union’s autonomy as guaranteed in International Labour Organisation instruments was to be respected as an element of respect for Article 11. This distinction underscores a critical difference between employers and trade unions. Trade unions are voluntary associations where like-minded individuals are free to associate with others whose views are not offensive or obnoxious to the ethos of the association. Employers, by contrast, are implicated in the distribution of important social and economic opportunities for citizens, namely jobs. The deprivation of a job through dismissal is a most serious form of interference with the substance of a Convention right, and that is accentuated when we consider Redfearn in the light of ASLEF.
(b) What about the future of continuity thresholds in respect of unfair dismissal protection? First, the ramifications of Redfearn might be far reaching in respect of other types of ‘freedom of association’ dismissal. Consider the following. A trade unionist with insufficient continuity of service is dismissed for engaging in intemperate expression in her capacity as a trade union official, but the court treats this as falling outside the rather narrow definition of ‘trade union activities’ under s 152 Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) (an automatically unfair reason for dismissal attracting ‘day 1’ protection). Following cases like Palomo Sanchez v Spain and Vellutini and Michel v France, this might be a dismissal situation engaging Art 10 and Art 11 freedoms. If so, there is no reason at all following Redfearn why such an employee should be blocked from bringing an unfair dismissal claim by the continuity threshold.
Secondly, the continuity threshold has now been moved from 1 year to 2 years by the Coalition Government. In the recent Court of Appeal decision of Turner v East Midlands the Court accepted that dismissals predicated upon a finding of serious culpability might engage an employee’s rights under Art 8 ECHR but that the scrutiny afforded by the statutory ‘band of reasonable responses’ test and the requirement of fair procedures therein would be sufficient to meet the Art 8 point. (See Heather Williams’ analysis of this test in a previous post on this blog). Certainly that is arguable if an individual meets the statutory qualifying periods to bring an unfair dismissal claim. That is not the situation for the many employees who are not able to meet the revised 2 year threshold. It remains to be seen whether the setting of the 2 year threshold will be within the State’s margin of appreciation under Convention jurisprudence.
(c) A possible response of the Government might be to do precisely nothing in response to Redfearn v UK. Following the prisoners’ voting rights debacle, respect for the international Rule of Law by the current Coalition administration is not assured. This raises a constitutional quandary for judges developing the common law of wrongful dismissal. The mantra in cases like Johnson v Unisys and Edwards v Chesterfield has been that it would be constitutionally improper for the courts to develop the common law in a manner that outflanks statutory restrictions on unfair dismissal protection (such as the cap on the compensatory award) that have been imposed by a democratically elected legislature. It has been a constant source of amazement to me that this argument has been given such short shrift by labour lawyers, given the brute fact that the legislation governing unfair dismissal does impose restrictions on the scope and availability of the right and the remedy. In this respect, there is something distinctive about this kind of statute. Where statutes do not contemplate restrictions of this kind, the constitutional concerns are somewhat different and the common law should have a freer reign. This is not so straightforward, however, in a situation where an employee or worker has had her Convention rights violated by a dismissal but is precluded a cause of action under the unfair dismissal legislation. Not only would it be permissible for the judges to develop the common law to create a ‘fundamental rights’ exception to the Johnson exclusion zone in this situation. It would be their solemn constitutional duty to do so.
Dr Alan Bogg is Senior Tutor, Fellow and Tutor in Law at Hertford College, University of Oxford.