Race Discrimination Issues - an Important Development

Last year, somewhat surprisingly, the Employment Appeal Tribunal (‘EAT’) held that the dismissal of a BNP member due to health and safety concerns, amounted to race discrimination.

Serco Ltd provides transport services to public authorities in the Bradford area. Mr Redfearn had been employed as a driver (although he was doing temporary duties delivering mail at the time of his dismissal). Mr Redfearn’s dismissal followed concerns being expressed by trade unions and employees about health and safety issues after Mr Redfearn had been identified as a BNP candidate. Serco Ltd was also concerned about its reputation and passengers.

Under the Race Relations Act 1976 (‘RRA), race discrimination occurs, if, on the grounds of race, an employee is treated less favourably than others.

The EAT, in deciding that Mr Redfearn’s dismissal amounted to race discrimination, followed a line of authorities which extended the notion of “racial grounds” to cover employees who had been dismissed for refusing to carry out an unlawful act. For example, in one case an employee had been dismissed for refusing to follow the employer’s instructions of not admitting black customers which had been held to be discriminatory.

By extending the scope of the RRA in such a way, the EAT opened up the possibility of claims being brought by employees dismissed for racial harassment. In overturning the EAT’s decision, the EAT made the point that such reasoning would turn the purpose of the legislation on its head and that ‘racial grounds’ applies to racially discriminatory acts. Simply because racial considerations have been taken into account does not mean the dismissal is necessarily on “racial grounds”.

So is it safe to dismiss on political grounds? Whilst many employers may be opposed to the ideologies of the BNP, this case does not necessarily leave members of such political organisations without any employment rights. Attempts are likely to be made to bring such ideologies within the ambit of the Employment Equality (Religion or Belief) Regulations 2003. So far, such attempts in Employment Tribunals have not been successful although this issue has not yet been tested in the higher courts. In addition, the dismissal of an employee with over one year’s service simply because he or she is a member of the BNP is unlikely to come within the definition of “some other substantial reason” and, as such, be a fair reason for dismissal. The dismissal will have to relate to other concerns, such as health and safety or damage to customer relations. Employers will also have to act reasonably in deciding whether or not to dismiss, consider all alternatives, such as duties which do not entail contact with customers and follow at the very minimum, the satisfactory procedures before coming to a decision.

Lesson for Employers:

• Do not be afraid of tackling race discrimination issues in the workplace.
• Roll out training on such issues for all employees.
• Ensure all employees are aware that they can bring a grievance if they believe they have been discriminated against.

For more information on this subject or other employment issues, please contact Yvonne Atherton on 0191 233 9789.

Please contact Yvonne Atherton for further information.

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