This case concerned the scope of the Race Relations Act 1976, and whether an employee was entitled to rely on it when he was dismissed for being a member of the British National Party (BNP).
Mr Redfearn was employed by Serco as a driver. Serco provided transport services to the local authority, where 78% of the customers were Asian, along with 35% of its workforce.
Redfearn was a member of the BNP, and a local newspaper ran an article about his role as a candidate for the BNP in the local elections. Following the publication of the article, Serco received a letter from Unison saying that many of Serco's employees found Redfearn's continued employment of concern, considering the BNP's apparently racist agenda. Unison looked to Serco to take immediate action to ensure its members were not subjected to the racial hatred promoted by the BNP. The GMB union, along with individual employees, also made similar representations to Serco.
Following Redfearn's election as a local councillor for the BNP, he was summarily dismissed by Serco on grounds that he would "present a risk to the health and safety of its employers and customers" and may well damage the reputation of the company and jeopardise its contract with the local authority.
Following his dismissal, Redfearn brought a claim for direct race discrimination. He argued that Serco had treated him less favourably by dismissing him on grounds of the ethnicity of the customers he transported. But Redfearn had one year's service, and so was unable to bring a claim for unfair dismissal.
Although Redfearn only claimed direct race discrimination, the tribunal went on to consider indirect discrimination.
The tribunal rejected Redfearn's claim of direct discrimination, stating that his dismissal was not on "racial grounds".
In relation to indirect discrimination, the tribunal held that Serco's dismissal of Redfearn was a proportionate means to achieve the legitimate aim of maintaining health and safety. Redfearn appealed.
The EAT agreed with Redfearn that the tribunal was wrong to say that the Showboat principal – Showboat Entertainment Centre v Owens (1984 IRLR 7, EAT), where an employee was sacked for refusing to exclude black customers and was thereby affected by the race of a third party – should not be applied. The EAT also said the tribunal's stance on indirect discrimination could not be upheld as it had not been shown how Redfearn's dismissal was a proportionate means to achieve a legitimate aim.
Serco's appeal to the Court of Appeal was upheld on the grounds that Redfearn's view of the Showboat principle was too wide, as the purpose of the legislation is to protect employees who refuse to implement a policy of their employer that is racially discriminatory. It also said that as Redfearn had not claimed indirect discrimination, it should never have been considered in the first place.
- The Court of Appeal rejected the EAT's decision, the logical conclusion of which appeared to be that an employer dismissing an employee for racially abusing another employee would itself be guilty of race discrimination – a very worrying consequence. Lord Justice Mummery, delivering the decision, said: "I am confident that this is not the kind of case for which the anti-discrimination legislation was designed."
- The Court of Appeal noted that this case, which had been "conducted against a background of the fundamental human rights of freedom of political belief... mingled with race relations, trade union power, local politics and job security issues", related only to a claim for race discrimination. Had Redfearn had one full year of service with the company, he may well have succeeded with an unfair dismissal claim.
What you should do
- Carefully consider whether dismissal really is justified purely for membership of an organisation such as the BNP. If you have legitimate concerns about workplace tensions or health and safety issues, investigate whether there are less risky ways of tackling the problem.
- Be aware that discrimination claims can arise in circumstances where dismissals would appear (at least to the employer) to be entirely justified.
- Take reasonable steps to minimise the risk of a race claim by preventing discriminatory behaviour in the first place. Make sure all employees are aware of your organisation's equal opportunities policy.
2 out of 5 stars
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