The extent to which European law has, and continues to, influence employment regulation in the UK has manifested itself in two different ways over recent months.
Firstly, after Mr Redfearn successfully convinced the European Court of Human Rights (ECHR) that UK law breached his human rights by not allowing him to challenge the fairness of his dismissal because of his political affiliation unless he had been employed long enough, the UK has changed the law relating to unfair dismissal to satisfy the European Court.
Mr Redfearn worked for SERCO as a minibus driver on a contract his employer had with Bradford City Council. It came to the attention of SERCO that MR Redfearn was elected as a councillor representing the British National Party (BNP). Given the fact that Mr Redfearn transported a high number of Asian passengers and worked in areas with significant ethnic minority populations SERCO dismissed him on health and safety grounds, and as his continued employment may jeopardize their contract with the Council.
He had less than one years service and therefore could not claim ordinary unfair dismissal, and his claims for race discrimination were dismissed as it was held that his dismissal was due to his political beliefs, not his race or ethnicity.
The ECHR held that the legal position in the UK, as it was, breached Mr Redfearn's right to freedom of association as he could not challenge the fairness of his dismissal. It said the UK should either create a new protected characteristic in the Equality Act of political affiliation or an exception to the rule that employees must have two years service in order to claim unfair dismissal, where the reason for dismissal is the employee's political affiliation.
The UK decided on the latter course and this change will be implemented from 25 June 2013. How much of an impact this will have in terms of litigation and the decisions which employers take remains to be seen, but given the emergence of the BNP and UKIP there is certainly scope for cases to be brought under the new law. IT should be noted that dismissal will not be automatically unfair of it is on the grounds of political affiliation, but employers will have to show it was reasonable in the circumstances and that they followed a fair procedure.
Secondly, the Employment Appeals Tribunal (EAT) has reportedly stated that the minimum periods of consultation on redundancies apply where the number of redundancies projected exceeds twenty across the whole business, not just at a single establishment, as the UK legislation had stated. It appears that the EAT considered that the UK regulations did not properly apply the European Directive upon which they are based.
This is an interesting decision considering how long the UK law has been in place, and is important in today's economic climate where many high street chains are going under. In fact, this decision was made in the cases involving the closure of the Woolworths and Ethel Austin stores.
In these cases the employers had not complied with the minimum periods at many stores as these employed less than twenty staff, but the EAT stated it is the total number of redundancies across all stores which cont, and this was over 100 redundancies meaning at the time consultation should have been for at least 90 days (now 45 days).
Given that each affected employee can be awarded up to 90 days' pay where the minimum consultation period was not complied with this could be a very expensive decision for large employers who have made redundancies across a number of sites.
Both these cases serve to illustrate the importance of European directives on domestic employment regulation and, as the second case particularly shows, all may not be as it seems.
For advice on unfair dismissal and redundancy processes call us on 0114 241 7092.
By James Murphy
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