A government review commissioned on the back of fears over the influence of British National Party (BNP) members working as teachers has concluded new laws should not be introduced to ban party members from holding teaching jobs. A list of BNP members leaked in late 2008 included 15 teachers.
The review concluded there was little justification for fears of teachers bringing racism to the classroom. It found there was public confidence in the teaching profession, very little evidence of actual racist complaints, and there were already strict rules regarding the conduct of teachers. Introducing a ban would be so disproportionate it would be like using a "very large sledgehammer to crack a very small nut".
The decision has been criticised by many parts of the profession and in particular the teaching unions lobbying for the ban.
But could such a ban be introduced without breaching employment laws that protect employees against discrimination? Care had to be taken in the review not to let understandable objections to the BNP lead to a knee-jerk reaction to one hard case, resulting in a bad law that inadvertently jeopardised other more acceptable freedoms and beliefs.
Employees have protection against being discriminated against on the grounds of their religion or belief. The separation of the belief aspect from any religious connotation is the important issue in cases of this type.
In the recent 'green beliefs' case of Grainger plc v Nicholson, a very broad interpretation of discrimination on grounds of philosophical belief was applied. A person who had environmental beliefs was protected against discrimination so, the theory has to go, why shouldn't a person with fascist beliefs who is a member of the BNP also not qualify for protection?
When the Employment Equality (Religion or Belief) Regulations 2003 were first introduced, they protected only against discrimination based on religion or a "similar philosophical belief". The word "similar" has since been dropped, considerably widening the protection given. While political opinions are not protected, it would appear that the more extreme views as promoted by the BNP could amount to a philosophical belief.
The idea that membership of the BNP could be grounds for protection against discrimination may appear to be contradicted by the fact that the police and the Prison Service already exclude BNP members. But it has to be taken into account that the Grainger case is still relatively recent and the full impact of the decision is yet to be fully realised.
Redfearn v Serco Ltd, the only previous case where an employee attempted to claim discrimination on grounds of BNP membership, failed. In this case, it was argued that a less favourable treatment claim could be based on race. In dismissing the claim, the Court of Appeal commented that if this claim were to succeed, it would turn "the policy of the race relations legislation upside down".
But discrimination laws have since changed and the blanket exclusion policy now appears to be wide open for challenge.
So can no action be taken against employed BNP members in the teaching and other professions? Even if BNP membership is protected against discrimination, it does not mean that head teachers and the relevant education authorities cannot take effective action against BNP members, where required.
Guidance has already been given by the appeal courts in cases where religious beliefs have appeared to clash with the right not to be discriminated against on the grounds of sexual orientation.
In the recent cases of Ladele v London Borough of Islington and McFarlane v Relate, it was argued where an employee's deeply held religious beliefs prevented them from being able to carry out certain parts of their job, they should be protected.
Jedis, vegans, members of the BNP...
All of the above could potentially argue they should be protected under the Employment Equality (Religion or Belief) Regulations 2003.
The Employment Appeal Tribunal in Grainger plc v Nicholson, where the belief at issue was one in climate change, said protection will be limited to beliefs "worthy of respect in a democratic society".
But should it really matter in an employment scenario whether a belief matches this description? XpertHR consultant editor Darren Newman argues that employers shouldn't panic, however wide a view the tribunals take of what constitutes a philosophical belief.
In both those cases, the claimants had objected to providing services to persons in a gay relationship. They considered that if they were to do so, they would be breaching their own Christian ideals.
Despite this, the employers had refused to compromise and had instructed them that unless they carried out their full duties, they would be dismissed.
Following their dismissal, they had brought claims of unlawful discrimination on the grounds of religion. The claims were dismissed. It was held they had not been subject to direct discrimination, as they could not establish they had been treated less favourably than anyone else who refused to carry out part of their job.
The claim they had suffered indirect discrimination also failed. The practice that the employer had put in place was to provide a service free of discrimination. That was a legitimate aim and dismissal for failing to comply was a proportionate response.
Clearly, it is a legitimate requirement that teachers are not racist in the manner that they perform their jobs. But membership of the BNP does not necessarily mean they cannot perform their job as required. The government review found no historical evidence that teachers could not leave their beliefs at the school gate and behave as professionals in the classroom.
Given there are already quite strict rules in place regarding the conduct of teachers, to bar them simply on the basis that they are a member of a political organisation is a disproportionate response that could not be justified. But if a teacher is observed being racist in the school, whether making a comment or otherwise, or a complaint is made, action could and should be taken without delay.