Serco Ltd -v- Redfearn
The Race Relations Act 1976 (RRA) applies to anyone discriminated against on the basis of their race, ethnic or national origins, colour or nationality (defined as "racial grounds").
The Act therefore applies equally to white people as well as to ethnic minorities. In Serco Ltd -v- Redfearn, however, the Court of Appeal has said that a BNP councillor’s complaint did not fall within it.
What were the basic facts?
Mr Redfearn was employed on 5 December 2003 by West Yorkshire Trading Services (WYTS) as a driver and escort for disabled children and adults in the Bradford area, a majority of whom were Asian.
In May 2004, he was identified in the local paper as a BNP candidate for the forthcoming local elections and was subsequently elected in early June.
A number of unions and individual employees expressed concern to the council that a BNP candidate was employed by an organisation that was contracted to carry out services for them.
On 30 June 2004, WYTS had a meeting with Mr Redfearn at which he was summarily dismissed. It said that his very public membership of the BNP would present a serious risk to the health and safety of other employees (a third of whom were Asian) and the passengers, with the result that they might not want to travel with WYTS. That would potentially jeopardise its whole reputation.
Mr Redfearn claimed direct and indirect race discrimination. He could not claim unfair dismissal as he had been employed for less than a year.
What did the tribunals decide?
The tribunal dismissed the claim of direct discrimination saying that if he had been treated unfavourably, it was on health and safety grounds.
It accepted, however, that the company had applied a provision to Mr Redfearn – that as a member of the BNP he could not be employed on health and safety grounds.
However, it then said the employer was justified in this indirect discrimination on the basis “that the application of the provision was a proportionate means of achieving a legitimate aim.”
The employment appeal tribunal (EAT) overturned the tribunal's decision, saying that it had defined the term “on racial grounds” far too narrowly.
What did the Court of Appeal decide?
The Court said that although the circumstances leading up to Mr Redfearn’s dismissal included a relevant racial consideration, such as the race of fellow employees and customers and the policies of the BNP on racial matters, it did not follow that he was dismissed “on racial grounds”.
He had been treated less favourably not because he was white, but because of a particular non-racial characteristic shared by him with a tiny proportion of the white population. In other words, membership of and standing for election for a political party like the BNP.
It concluded therefore that Mr Redfearn was no more dismissed “on racial grounds” than an employee who is dismissed for racially abusing his employer, a fellow employee or a valued customer.
The Court said that “any other result would be incompatible with the purpose of the 1976 Act to promote equal treatment of persons irrespective of race by making it unlawful to discriminate against a person on the grounds of race.”
As for his claim of indirect discrimination, the Court said that the tribunal should not have even considered this because Mr Redfearn had not identified “the policy, criterion or practice” that had supposedly been applied to him, the relevant pool nor the relevant disparity.
This judgment is a common sense application of the law. Had the decision of the EAT been allowed to stand then the whole purpose of the Race Relations Act would have been undermined, and the policies negotiated by unions - that BNP membership is incompatible with certain jobs like prison officers - would have unravelled.