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In a liberal democracy, everyone should be treated as an equal and everyone should have the right to freedom of thought. How can anyone disagree? Well, some do. Fascists, racists, bigots, sexists, religious fundamentalists, political extremists – just to name a few- endorse ideologies that are incompatible with the very values of equality and liberty that underlie human rights. These people believe in fewer or no rights for people of different race, religion, sex, sexual orientation or political opinion. They are the people who in the course of human history have often acted on these beliefs, inflicting terrible wrongs on women, Jews, Muslims, ethnic minorities, gays, immigrants, disabled people or communists. They are the reason why liberal democracies introduced anti-discrimination laws, seeking to protect the equal rights of unfavorable groups. They are the people whose expression is in many liberal democracies restricted by hate speech laws, not only for symbolic reasons but also to curb the spread of their bigotry before it materializes into wrongful action. So it is often said that a liberal democracy cannot treat everyone’s beliefs the same: it must reject ideas that are incompatible with its own values. It must show “intolerance towards intolerance”. It cannot be neutral all the way down. But does this mean that racists should have fewer legal rights than the rest of us?
Mr Arthur Redfearn is a white British bus driver who worked for Serco, a private company providing government services in Bradford, an area beset by racial tensions. Mr Redfearn’s job involved transporting people with mental disabilities, the majority of which were of Asian origin. The record of Mr Redfearn as an employee had been impeccable, with no complaints about his work or his conduct. Indeed, he was even nominated, by his British Asian supervisor, for the award of ‘first-class employee’. When a local newspaper identified him as a candidate for the British National Party (BNP), the public sector workers’ trade union (UNISON) expressed concern that his continued employment with Serco posed a significant risk to others: the BNP has an overtly racist ideology and Serco’s customer base, as well as its workforce, was of predominantly Asian origin. Serco on the other hand became concerned that employing publicly known BNP members will harm its reputation and possibly cost them the contract with the local authority. When Mr Redfearn was elected local councilor for the BNP, Serco decided to dismiss him summarily.
Did the dismissal violate Mr Redfearn’s human rights? UK courts never got to pronounce on this question. Under UK employment law, workers do not have a right against unfair dismissal unless they have been in the same job for 12 (now 24) consecutive months (the ‘qualifying period’). Since Mr Redfearn had been with Serco for only 6 months, he had no legal right to challenge the fairness of his dismissal except on some very limited grounds including discrimination because of religion, race or sex. And given that this was a dispute between private individuals, he could not directly invoke the Human Rights Act 1998 (HRA) as the legal basis for an action against his employer. Had he been entitled to challenge the fairness of his dismissal, he would have been able to invoke the HRA and ask the court to interpret what fairness in dismissal requires in the light of his human rights.
The case went to the European Court as an article 11 ECHR case (freedom of association). Mr Redfearn submitted that the UK had a positive obligation to protect him from dismissal on the ground of his involvement with the BNP, even during the qualifying period. The Strasbourg Court found a violation of article 11 ECHR by the narrowest of margins (4 votes to 3). It held that the UK should either add political beliefs or affiliation to the existing prohibited grounds of discriminatory dismissal (race, sex and religion) during the qualifying period or, alternatively, create a self-standing claim for unlawful discrimination on the basis of one’s political beliefs or affiliation.
The Court’s judgment should be welcomed as a prime example of what a consistent application of the liberal-egalitarian values underlying human rights demand. It is premised, in my view, on the following two principles: first, a state cannot prohibit discrimination on the ground of religious beliefs but allow discrimination on the ground of political beliefs. Second, beliefs whose content is incompatible with the values of the Convention (such as racism, fascism, sexism etc) are in principle as worthy of protection from discrimination as any other belief. These two principles are not new; they have been previously recognized, albeit not always consistently, by the Court.
Take the first principle. Article 9 ECHR, which protects the right to freedom of thought, protects not only religious beliefs but also any other belief, be it political, philosophical or otherwise. Strasbourg organs have examined under article 9 ECHR a number of complaints involving non-religious beliefs, such as pacifism (Arrowsmith v United Kingdom, 1978), scientology (Church of Scientology Moscow v. Russia, 2007) and veganism (W v United Kingdom, 1993). Though the Court dismissed Mr Redfearn’s complaint under article 9 ECHR, and preferred to examine it under article 11 ECHR, this should be seen as no more than a mere formality. Throughout the judgment the Court referred disjunctively to Mr Redfearn’s political ‘opinion’ or ‘affiliation’. Indeed, it would have made no difference to the Court’s reasoning if Mr Redfearn had been dismissed solely because he was a known BNP enthusiast or sympathizer, but not a formal member. He still would not have been able to challenge his dismissal under UK employment law. But he would have been able to do so if he had been dismissed because of his membership to a particular church or his religious beliefs. This differential treatment between religious beliefs and political opinion (or, if you like, between religious associations and political associations), emphasized by the Court in para 54 of its judgment, is arbitrary and goes against the very core of article 9 ECHR. This is why, contrary to what the dissenting judges (sir Nicholas Bratza, Hirvela and Nicolaou) argued, it is not within the states’ margin of appreciation which grounds of discrimination they may prohibit within employment. If states prohibit religious discrimination (which they arguable ought to) then the Convention requires that they must also prohibit discrimination on the basis of political opinion or association.
Now consider the second principle that anti-egalitarian opinions (such as racism, fascism or sexism) are as worthy of protection from discrimination as any other opinion. This principle does not mean that we should protect wrongful actions that may be motivated by these despicable views, such as race crimes or other horrible abuses. It simply means that in a democratic society we should respect the right of people to have such thoughts and beliefs. We should not, in other words, be engaged in ‘thought control’, which is what states do when they condition the distribution of vital opportunities or benefits (such as employment) on having particular beliefs. People have a right to have any thoughts they like, including bad thoughts. It is a different issue altogether, falling outside the protective scope of the principle, when racists thugs act in a way that harms or otherwise wrongs some vulnerable group. But merely holding certain beliefs, absent harm or a clear and present risk of harm to others, is no reason to dismiss anyone, including BNP members. The distinction between thought and action is here crucial. This is why the Court, rightly, found the fact that Mr Redfearn was a BNP member irrelevant, repeating its known slogan that the Convention protects not only ideas that are received favorably or with indifference, but also ideas that ‘offend, shock or disturb’ (para 56). In this respect, the Court clearly moves away from the view, mentioned in Campbell and Cosans (1982)and repeated in the explanatory notes to the UK Equality Act 2010, that only beliefs compatible with human dignity are protected by the Convention. As far as freedom of thought goes, this view is not defensible.
In its third-party intervention against the applicant, the Equality and Human Rights Commission argued that employing known BNP members impacts on the employer’s provision of services regardless of whether or not there are any complaints about the manner in which they do their job. It noted further that the justifiability of dismissing a BNP member could turn on a number of factors, including whether employing him undermines public trust and confidence or harms the employer’s reputation. These are all bad arguments: the mere fact that service users refuse to be served by workers who endorse a particular ideology is no reason to dismiss them. Nor is it relevant that the employer’s business interests will suffer as a result of this refusal. These are not legitimate bases for dismissing people. Just like the employer would be unjustified in firing a communist –or, for that matter, an HIV/AIDS- worker solely because clients do not want to be served by her or him, likewise it would be unjustified to fire BNP members, including those holding civil service jobs, solely because ethnic minorities do not want to be served by them. We shouldn’t, absent any evidence or real risk of wrongful conduct, deprive people of employment simply because they may entertain anti-democratic or inegalitarian thoughts. And in any case, the crucial issue raised in Redfearn v UK was that UK employment tribunals were barred in the first place from pronouncing on whether such dismissals are proportionate to the legitimate aim of preventing a clear and present risk of racial violence.
I should end with a comment on the impact this judgment might have on the Court’s approach to discrimination and religion in general. The Court is currently deliberating on four cases pending against the UK (Ladele, Chaplin, Eweida, Macfarlane) to do with religious discrimination and dismissal. They differ from Redfearn in that they involve indirect discrimination claims: the applicants were dismissed because they refused to comply with an imposed occupational requirement that interfered with their religious convictions (such as to officiate in gay marriages) or the right to manifest their religion (such as to wear a cross). Unlike Redfearn, these cases are not about illegitimate restrictions imposed on an employee solely because others, rightly or wrongly, condemn her opinions and refuse to be served by her. Rather, they are about whether employers have a duty to exempt religious employees from otherwise legitimate occupational requirements. Neither of the principles on which Redfearn was decided helps the applicants in the four pending cases. In fact, the opposite could be claimed: just like Mr Redfearn should have no right to be exempt from having to serve immigrants or ethnic minorities, as incompatible with his political convictions, likewise Christians should have no right to be exempt from having to officiate in gay marriages or to counsel gay couples.
All five cases will most likely end up before the Grand Chamber of the European Court of Human Rights. The Court should be steadfast in upholding the principles underlying Redfearn. In a democratic society, we must treat religious beliefs in the same way we treat any other belief and we must respect the right to have bad thoughts in the same way we respect the right to have any other thought.
George Letsas is Reader in Philosophy of Law and Human Rights at University College London.
Suggested citation: G. Letsas, ‘Redfearn v UK: Even Racists Have the Right to Freedom of Thought’, UK Const. L. Blog (13th November 2012) (available at http://ukconstitutionallaw.org).