Turning race relations policy on its head

In July 2005, the Employment Appeal Tribunal (EAT) upheld the appeal of Arthur Redfearn, the bus driver sacked by Serco after he became a BNP councillor (Redfearn v Serco Limited T/A West Yorkshire Transport Services).

This decision caused quite a stir, not least because of the EAT’s finding that Redfearn could rely on the protection of the Race Relations Act 1976 precisely because of the racist views generally attributed to the “whites only” BNP and its members.

Racial grounds

On the face of it, this decision was so at odds with the concept of racial harmony that the Act was intended to promote that it was perhaps no surprise that Serco appealed, with the support of both the Commission for Racial Equality and the TUC.

Central to Redfearn’s claim was that his dismissal amounted to less favourable treatment “on racial grounds”. His argument relied on the broad interpretation of this phrase adopted in a number of cases.

His key contention was that he would not have been dismissed if most of the passengers he transported and a large proportion of his co-workers had not been Asian, and therefore more likely to be offended by his association with the BNP. In other words, the “racial grounds” he relied on were the race of a third party and their perception of his views on race.

It has long been established that it can be unlawful to discriminate against person A on the grounds of person B’s race. For example, it is unlawful to dismiss an employee for disobeying an employer’s instruction not to admit black customers to an entertainment centre or to refuse to admit or serve a white customer on the grounds that they are with a black person.

This approach is clearly consistent with the aim of the Act – namely to promote racial equality and to penalise those who adopt a racially discriminatory policy or practice.

Turned upside down

In contrast, Redfearn’s argument, which was endorsed by the EAT, appeared to undermine the whole purpose of race discrimination legislation. The logical conclusion of his position that “racial grounds” covered a person’s views on race was that an employer who dismissed one employee for racially abusing another would face a claim under the Act from the discriminating employee.

Nevertheless, the EAT was convinced that the Act placed no clear limit on the meaning of “racial grounds” and it was not appropriate for the courts to do so.

However unattractive the argument may appear when taken to its extreme, there was simply no basis in law for distinguishing between one type of racial consideration (such as a person’s views on race) from another (such as their association with those of a different race).

Not surprisingly, the Court of Appeal (CA) overruled the EAT’s controversial decision, commenting that to afford Redfearn protection under the Act turned the policy of race relations legislation “upside down”.

While conceding that the circumstances under which the decision to dismiss Redfearn was taken included “racial considerations” (such as the race of a high proportion of his passengers and colleagues), in contrast to the approach adopted by the EAT, the CA held that this did not mean that it was right to categorise his dismissal as being “on racial grounds”.

It concluded that Redfearn was no more dismissed “on racial grounds” than an employee who was dismissed for racially abusing a fellow employee.

For once, common sense has prevailed over clever legal argument, and some degree of sanity has been restored to this area of the law.

The court of appeal’s conclusion

The Court of Appeal (CA) has overruled the EAT’s decision that Redfearn may have been racially discriminated against when he was dismissed after becoming a BNP councillor. In rejecting the EAT’s views that one person’s views on the race of another fell within the meaning of racial grounds, the CA concluded that this approach turned the policy of race relations legislation upside down.

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