I have just been reading the ‘Legal’ page (Personnel Today, 28 September), which discusses behaviour outside working hours and what may and may not be done about it.
One of the questions was about a member of staff being known to be a member of the BNP and the fact that a black worker has refused to work with that person. The final answer incensed me.
The question relates to the black worker’s continued refusal to work with the BNP member. At the end of the answer it says “it would probably be safer to dismiss the BNP activist than the black employee”. Why would it? This implies that an employment tribunal would be more likely to find the dismissal of a BNP member as fair than that of a black employee. I can see a successful and very public appeal taking place in this circumstance.
Although membership of the BNP might well be considered, by most people, including myself, to be an odious activity, it is not illegal and our country gives all citizens the freedom to belong to whatever legal organisation interests them.
On what grounds would such a dismissal happen? Relying on ‘some other substantial reason’ is unlikely to be enough in court and would certainly not be enough for the BNP member, who would doubtless make much of this on political grounds.
Would the same advice be given if the black employee refused to work with someone who was a member of a collecting club of some sort, on the basis that they might be bored rigid? The article even stated that the BNP member “has done nothing at work for which he can be criticised”. Therefore, he would be being dismissed on the basis that he might say or do something, at an unknown time in the future, to offend the black employee.
I am sure we could all think of people we would like to see dismissed for their particular political beliefs or activities. However, I am well aware that our employment law does not allow dismissal on the basis of membership of the BNP, or any other political party.
Does a black employee have employment rights not available to others? This is patently not the case and is treading on very dangerous ground.
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David Appleton, partner at Lewis Silkin, responds:
“Dismissal of the BNP member may well be unfair. However, if the black employee was so traumatised by the presence of the BNP member that he could not work, dismissal of the BNP member after all other reasonable routes to resolve issues have been exhausted may be fair. The reason that dismissal of the BNP member may be ‘safer’ is that he would probably only have an unfair dismissal claim, where compensation is capped at £55,000, while the black employee could have a race discrimination claim, where compensation is uncapped and injury to feelings awards are available.”
