JOINT PARTLY DISSENTING OPINION OF JUDGES BRATZA, HIRVELÄ AND NICOLAOU

1. We regret that we are unable to share the view of the majority that there was a violation of Article 11 of the Convention in the present case. In our view, the United Kingdom was not in breach of its obligations under the Article by reason of any failure to protect the applicant against his dismissal from his employment on grounds of his political opinion.

2. Despite differing in the result, there is much in the judgment with which we are in agreement.

(a) As noted in the judgment, the case concerns exclusively the positive obligations of the State to secure through its legal system the rights guaranteed by Article 11. The applicant’s employer, Serco, was a private limited company and the applicant’s dismissal by the company did not involve any direct intervention or interference on the part of the United Kingdom. The Court has accepted that Contracting States cannot guarantee the effective enjoyment of Article 11 rights absolutely. In assessing whether such positive obligations arise and, if so, to what extent, the Court must determine whether a fair balance was struck within the legal system between the competing interests of the individual and the community as a whole. In a case where sensitive social, economic and political issues are involved, in achieving a proper balance between those interest and, in particular, in assessing the appropriateness of State intervention, the Contracting States enjoy a wide margin of appreciation in the choice of means to be employed.

(b) It is accepted in the judgment that a claim for unfair dismissal under the 1996 Act affords effective protection against the dismissal of a person on account of his political beliefs or affiliations, imposing as it does an obligation on the employer to demonstrate, inter alia, that there was a substantial reason of a kind such as to justify the dismissal of the employee.

(c) It is also accepted that a fair balance is not upset by the inclusion in the 1996 Act of a one-year qualifying period, the purpose of which is to create greater employment opportunities by encouraging companies to recruit without the risk of being subjected to unwarranted claims by employees for unfair dismissal during the early months of employment. Like the House of Lords in the case of R v. Secretary of State for Employment, ex parte Seymour-Smith and another, we consider that it was and is in principle reasonable and appropriate for the State to lay down a qualifying period and that the period set in the United Kingdom cannot be said to fall outside any acceptable margin of appreciation (see, in the context of a complaint under Article 6 of the Convention, Stedman v. the United Kingdom, application no. 29107/95, decision of 9 April 1997, in which a restriction on access to an industrial tribunal for unfair dismissal to employees of two years’ standing was held to pursue a legitimate aim and not to be arbitrary or to impair the very essence of the right of access to a court). The justification for a qualifying period is not in our view affected by the fact that in an individual case there may be no justifiable grounds for the dismissal or that the dismissal may lead to particular financial or other hardship on the part of the employee concerned. It is the balance struck by the legal system as a whole and not the effect of dismissal in any individual case to which regard must be had.

3. Where we part company with the majority is in the broad assertion in the judgment that, even within the qualifying period, there exists a positive obligation on the authorities under the Convention “to provide protection against dismissal by private employers where the dismissal is motivated solely by the fact that an employer belongs to a particular political party (or at least to provide the means whereby there can be an independent evaluation of the proportionality of such a dismissal in the light of all the circumstances of a given case)” (paragraph 43). 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. It is argued that it is incumbent on the United Kingdom to protect employees, including those with less than one year’s service, from dismissal on grounds of political opinion, either through the creation of a further exception to the one-year qualifying period or through the creation of a free-standing claim for unlawful discrimination on grounds of political opinion.

4. We are unable to accept the argument that, having created certain exceptions to the requirement of employment for the qualifying period, the State was obliged to create a further exception in the case of dismissal on grounds of political opinion, still less that the Convention imposes a positive obligation to create a free-standing cause of action, without any temporal limitation. This, in our view, is to press the positive obligation too far. In a complex area of social and economic policy, it is in our view pre ‑ eminently for Parliament to decide what areas require special protection in the field of employment and the consequent scope of any exception created to the general rule. The choice of Parliament of race, sex and religion as grounds requiring special protection can in no sense be seen as random or arbitrary. 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. These grounds include differences of treatment on grounds of race (D.H. and others v the Czech Republic [GC] no. 57325/10, ECHR 2007), sex (Abdulaziz, Cabales and Balkandali v the United Kingdom, 28 May 1985, Series A No. 94), religion (Hoffmann v Austria, 23 June 1993, Series A no. 94) and nationality and ethnicity (Timishev v Russia, nos. 55762/00 and 55974/00, ECHR 2005-XII). In addition, the Court has indicated that differences of treatment which are based on immutable characteristics will as a general rule require weightier reasons in justification than differences of treatment based on a characteristic or status which contains an element of choice (Bah v the United Kingdom, no. 56328/07, 27 September 2011).

5. Doubtless the balance could have been struck by the legislator in a different way and further exceptions to the qualifying period might have been created to cover claims for dismissal of other grounds, including that of political opinion or political affiliation. 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.

6. Since, for the reasons given above, we see a justification for treating differently the comparators relied on by the applicant under Article 14, we have voted in favour of the conclusion in the judgment that it is not necessary to examine separately whether there was also a violation of Article 14 read in conjunction with Article 11.