Redfearn v UK: Political Association and Dismissal

Publication Date01 Sep 2013
AuthorVirginia Mantouvalou,Hugh Collins
DOIhttp://doi.org/10.1111/1468-2230.12040
CASES
Redfearn vUK: Political Association and Dismissal
Hugh Collins*and Virginia Mantouvalou**
In Redfearn vUK the European Court of Human Rights examined the question whether dismissal
for membership of a political party is compatible with freedom of association under Article 11 of
the European Convention on Human Rights. The Court endorsed a strong commitment to
multi-party democracy and protection of employees against the domination of the employers.
This note discusses the judgment and its implications for UK law, looking at three key issues: first,
whether the law of unfair dismissal provides effective protection against action that poses a threat
to the enjoyment of Convention rights; second, the grounds under which an employer may
justify the lawfulness of a dismissal that interferes with a Convention right; third, the available
remedies against the employer when there is a breach of a Convention right.
If pressed, Professor Sir Otto Kahn-Freund could sometimes be persuaded
to tell the story of his flight from Germany in 1933. As a young labour
court judge, Kahn-Freund heard a case concerning the dismissal of three radio
technicians, who had been sacked shortly after Hitler’s seizure of power for
allegedly conspiring to sabotage Hitler’s triumphalist radio broadcast to the
nation. Kahn-Freund held that the technicians had been selected for dismissal
on the ground of their membership of the Communist party and that in a
democratic society such a reason was automatically unfair. In response to this
act of defiance, Kahn-Freund was illegally dismissed himself, interrogated by
the Gestapo, and his house was searched and many books were seized. Otto
and his wife fled to England where he commenced a distinguished career at
the London School of Economics, which included helping to found this
Review.1His adopted country lacked a law of unfair dismissal, though sub-
sequently he paved the way for its introduction in 1971.2But, with the excep-
tion of Northern Ireland,3this country has never provided explicit legal
protection against political discrimination by employers. That position now has
to change.
*Professor of English Law, London School of Economics.
**Reader in Human Rights and Labour Law, University College London.
1 For details of the story, see: O. Kahn-Freund, Labour Law and Politics in the Weimar Republic
(R. Lewis and J. Clark eds) (Oxford: Blackwell, 1981) 5.
2 The report of the Royal Commission on Trade Unions and Employers’ Associations 1965-8,
Cmnd 3623 (1968), of which Kahn-Freund was an influential member, recommended a law of
unfair dismissal, which was enacted in the Industrial Relations Act 1971.
3 Protection for ‘political opinion’ under the Fair Employment and Treatment (Northern Ireland)
Order 1998, SI 1998/3162 (NI 21).
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© 2013 The Authors. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(5) MLR 909–934
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

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