Serco Ltd v Redfearn

A claim for race discrimination contrary to the Race Relations Act 1976, as amended (the 1976 Act) was brought in the employment tribunal by a member of the British National Party (BNP) against his former employer. According to its constitution the membership of the BNP is confined to white people and the BNP is

“…wholly opposed to any form of integration between British and non-European peoples. It is therefore committed to stemming and reversing the tide of non-white immigration and to restoring, by legal changes, negotiation and consent, the overwhelmingly white makeup of the British population that existed in Britain prior to 1948.”

The dispute, which has been conducted against a background of the fundamental human rights of freedom of political belief, expression and association, mingled with race relations, trade union power, local politics and job security issues, needs to be analysed dispassionately in order to identify the legal questions for decision on the appeal. The only function of this court is to decide whether a question of law on the interpretation and application of the 1976 Act arises from the unanimous decision of the employment tribunal to dismiss the claim. The Employment Appeal Tribunal disagreed with the employment tribunal’s interpretation and application of the 1976 Act and ordered the case to be re-heard by a different tribunal.

It is not the function of this court either to overturn findings of fact which the employment tribunal was entitled to make on the evidence before it or to become embroiled in the politically controversial aspects of the dispute. The court is grateful for the expert assistance received from Mr David Pannick QC for the appellant and Mr John Bowers QC for the respondent in this sensitive area of the law. In the best traditions of the English Bar they have brought objectivity and moderation, as well as clarity and courage, to their excellent submissions.

Serco Ltd (Serco) trades as West Yorkshire Transport Service and supplies transport services to public authorities, including the Bradford City Council. Its buses are used to transport adults and children with physical or mental disabilities in the Bradford area. The majority of the passengers are Asian in origin.

Mr Redfearn, who is white and is himself physically disabled, was employed by Serco from 5 December 2003 until he was dismissed on 30 June 2004 by the managing director, Mr Binnington, and another senior Serco official. Initially Mr Redfearn worked as a driver’s escort. Then he was promoted to driver. At the time of his dismissal he was employed on a temporary assignment to drive a vehicle delivering mail to Council offices. He was regarded as a satisfactory employee. There had been no complaints about his work or his conduct at work. Mr Redfearn said that his Asian supervisor, with whom he got on very well, nominated him for an award of first class employee status.

On 26 May 2004 an article appeared in the Bradford Telegraph and Argus identifying Mr Redfearn as a candidate for the BNP in the forthcoming local elections.

On 27 May 2004 Serco received a letter from UNISON saying that many of its members found Mr Redfearn’s continued employment a “significant cause for concern, bearing in mind the BNP’s overt and racist/fascist agenda.” 70% to 80% of Serco’s customers was Asian, as was 35% of its workforce. UNISON said that it looked to Serco “to take immediate action to ensure that our members are not subjected to the kind of racist hatred promoted by the BNP and its supporters.” Representations were also received from the GMB union and from employees about personal safety and company property.

On 15 June Mr Redfearn was elected as a local councillor for the BNP. On 30 June 2004 Serco summarily dismissed him. It had received legal advice from Group level (Employment Relations) to the effect that his employment would present a risk to the health and safety of its employees and passengers. It would give rise to considerable anxieties to passengers and their carers, who placed a great deal of trust in the drivers and escorts. It would potentially jeopardise Serco’s reputation, possibly leading to the loss of its contract with the Council.

Mr John Bowers QC, who appeared on behalf of Mr Redfearn, said that there was a strong case for describing the dismissal as “unfair”: Mr Redfearn was recognised by Serco as a first class employee; it was not suggested that he had brought his political views into the workplace or that he was involved in, or supported the use of, violence in connection with his political views; the BNP, for which he had been democratically elected as a councillor, was a lawful political party; he was dismissed summarily without being given any opportunity to resign his membership or office in order to retain his job; and, at the time of dismissal, his work for Serco did not involve contact of a kind that would attract the health and safety fears relied on by Serco in dismissing him.

If this was an unfair dismissal case, there would be substance in the critical comments on the circumstances of Mr Redfearn’s dismissal. It is not, in general, fair to dismiss a person from employment for engaging in political activities or for being a member of a political party propagating policies that are unacceptable to his employer, to his fellow employees, to trade union officials and members, or even to most of the population. We aspire to live in peace with one another in a politically free and tolerant society. Unpopular political opinions are lawful, even if they are intolerant of others and give offence to many. The right to stand for political office in a democratic election and to engage in political debate is entitled to respect, however unpalatable the person’s political convictions may be to many others.

But this is not (I repeat not) an unfair dismissal case. Issues about whether Mr Redfearn’s politics are acceptable or about whether Serco’s treatment of him was fair and reasonable are not relevant to this appeal. The case that Mr Redfearn has chosen to bring against Serco is for race discrimination against him.

On 12 August 2004 Mr Redfearn presented to the employment tribunal a complaint of race discrimination. It is fair comment that this is not the kind of claim that one would expect a member of the BNP to make. There were, however, no other legal claims available to Mr Redfearn against Serco for the loss of his job.

He had insufficient length of service to entitle him make a claim against Serco under the Employment Rights Act 1996 (the 1996 Act) for unfair dismissal. The qualifying period under section 98 of the 1996 Act is 12 months. His case does not fall under the specific instances in the 1996 Act (such as pregnancy, protected disclosure and assertion of a statutory right) in which an employee is protected against unfair dismissal without having to satisfy the 1 year period of qualifying service: see section 108(3). As the 1996 Act does not apply, the reasonableness or fairness of the parties’ conduct is not an issue in the case. The question is whether it has been established that Serco has directly or indirectly discriminated against him on racial grounds. There is no law prohibiting discrimination on political grounds.

Mr Redfearn might have had a claim for wrongful dismissal, but he has suffered no damage, as we are told that he received pay in lieu of the period of notice to which he was entitled. He could not bring a claim against Serco under the Human Rights Act 1998 (the 1998 Act) for infringement of his Articles 9, 10 or 11 rights, as Serco is not a public authority.

In his originating application to the employment tribunal Mr Redfearn advanced a claim of direct race discrimination. He alleged that Serco had treated him less favourably under section 1(1)(a) of the 1976 Act “by dismissing him, on the ground of the Asian race and ethnic origin of the people the Applicant transported.” No mention was made of a claim for indirect race discrimination, although Serco’s Grounds of Resistance anticipated the possibility of such a claim by stating that

“7.

If, which is not admitted, the conduct of the Respondent in dismissing the Applicant is held to amount to indirect discrimination, the Respondent will contend that the conduct was justifiable in all the circumstances.”

The employment tribunal dealt with both direct and indirect discrimination. Unfortunately, there was no prior case management conference to identify the issues for the hearing and no amendment was ever made to the originating application formulating the basis of the indirect discrimination claim. The case was, however, argued at the hearing on behalf of Mr Redfearn (who then had different representation than he has now) along the lines that “since the BNP is a whites only party the dismissal is indirect racial discrimination.” Serco was challenged to show that such discrimination was justified. In Mr Redfearn’s skeleton argument in the employment tribunal reliance was also placed on section 1(1)(b) of the 1976 Act. The submission was that it followed from the fact that

“membership of the BNP was limited to whites.. that [Serco] in deciding that membership of the BNP was incompatible with the Applicant’s continued employment [Serco ] was imposing a requirement such that the proportion of persons of his racial group was ‘considerably smaller than the proportion of persons not of that racial group’. This applies a fortiori in this case because the number of non-white persons who would not be able to satisfy the requirement (of not belonging to the BNP) is not only ‘considerably smaller’ than the proportion of whites but infinitely less ie none at all.”

The self evident aim of the race relations legislation is to promote an anti-discrimination policy. Part II of the 1976 Act covers race discrimination in the employment field and makes it unlawful for an employer to discriminate against an employee by, among other things, dismissing him: section 4(2).

Section 1 of the 1976 Act defined direct discrimination as follows

“(1)

A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if-

(a)

on racial grounds he treats that other less favourably than he treats or would treat other persons”.

Section 1(1) of the 1976 Act originally dealt with indirect discrimination as follows

“ (b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but-

(i)

which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and

(ii)

which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and

(iii)

which is to the detriment of that other because he cannot comply with it”.

The indirect discrimination provisions were amended with effect from 19 July 2003 by the addition of subsections (1A),(1B) and (1C) implementing Council Directive 2000/43/EC governing the principle of equal treatment between persons irrespective of racial or ethnic origin: see Race Relations Act 1976 Amendment Regulations 2003.

“(1A) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but

(a)

which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons,

(b)

which puts that other at that disadvantage, and

(c)

which he cannot show to be a proportionate means of achieving a legitimate aim.

(1B) The provisions mentioned in subsection (1A) are

(a)

Part II

[I omit (b) – (g) as immaterial]

(1C) Where, by virtue of subsection (1A), a person discriminates against another, subsection (1) (b) shall not apply to him.”

Section 3 (1) defined “racial grounds” as meaning “any of the following grounds, namely colour, race, nationality or ethnic or national origins” and “racial group” as meaning

“a group of persons defined by reference to colour race, nationality or ethnic or national origins, and references to a person’s racial group refer to any racial group into which he falls.”

Section 3(4) provided that

“ A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) [or 1A] must be such that the relevant circumstances in the one case are the same or not materially different, in the other.”

In its extended reasons sent to the parties on 2 February 2005 the employment tribunal rejected the claim for direct discrimination. It held that Serco’s dismissal of Mr Redfearn was not “on racial grounds.”

The employment tribunal made findings of fact about Serco’s reasons for dismissing Mr Redfearn. Although, as I have explained, this was not an unfair dismissal case, the circumstances of Mr Redfearn’s dismissal by Serco were relevant to the race discrimination issues, in particular whether he was discriminated against “on racial grounds” and whether, if there was any indirect discrimination against Mr Redfearn, it was justifiable.

Evidence was given to the tribunal by Serco’s General Manager, Mr Binnington. He was cross examined. The tribunal accepted his evidence, as it was entitled to do. In summary it found that Serco had received representations from UNISON, GMB and its own employees expressing concerns about Mr Redfearn’s membership of BNP, which UNISON described as having an “overt and racist/fascist agenda”; that there was growing tension in its depot and concern about personal safety and that of company property; and that Serco took and accepted legal advice that the continued employment of Mr Redfearn, with his public membership and representation for the BNP, might lead to difficulties of various kinds. Particular mention was made of difficulties with Serco’s other employees and damage to its relationship with the unions representing its workforce; a significant risk that members of the public strongly opposed to BNP’s policies might wrongly associate Serco with the BNP, which might in turn lead to attacks on Serco’s minibuses which would jeopardise the health and safety of Serco’s staff and its vulnerable passengers; a significant risk to the health and safety of Mr Redfearn; considerable anxiety amongst Serco’s passengers and those relatives/carers entrusting vulnerable passengers to Serco’s care; the risk of losing Serco’s existing contract with Bradford City Council; and damage to the Group’s and Serco’s reputation so as potentially to place at risk existing contracts and future bids for work in the Public Sector and elsewhere (see especially paragraphs 3.10 and 3.11 of the extended reasons.)

An attempt has been made to challenge the decision on the ground that the tribunal failed to make relevant findings of fact or that its findings of fact were perverse. In my judgment there was no substance in any of the criticisms of the tribunal’s factual conclusions from the evidence. I say no more about them.

The employment tribunal concluded that the claim for direct discrimination should be dismissed.

“ 5.1 Insofar as direct discrimination is concerned we are satisfied that if any discrimination [unfavourable treatment] existed against the Claimant it was not on racial grounds. We are satisfied that if there was discrimination [unfavourable treatment] it took place on health and safety grounds, which was brought about by the Respondent discovering the Claimant’s candidature as a BNP Councillor, which automatically meant that the Claimant was a member of the BNP and also his subsequent election, having regard to the high preponderance of passengers and significant number of employees who were of Asian origin.

5.2

We further do not believe that the action taken against the Claimant because of the Respondent’s concern in relation to its passengers and employees of Asian origin, gives the Claimant any grounds for suggesting that the Respondent directly discriminated against the Claimant. The authorities on which the Claimant sought to rely in this regard (which are known as the Showboat Line of authorities- see Showboat Entertainment Centre Limited v. Owens [1984] IRLR 7) in each case involved someone in the position of the Respondent asking someone in the position of the Claimant to carry out an unlawful act against someone in the position of the passengers/employees of the Respondent . We believe those authorities to be wholly inapplicable to a case of this kind.

5.3

We do not believe that the consideration of a comparator, real or hypothetical, in this case would take the Claimant any further.”

As for indirect discrimination, the tribunal referred to section 1 of the 1976 Act and concluded

“5.6

In respect of Section 1 (1A), which does apply in the employment field, the Respondent did apply a provision that if the Claimant were a member of the BNP he could not be employed by the Respondent on health and safety grounds. The Respondent could equally have applied the provision to persons not of the same race or ethnic or national origin as the Claimant. Such a provision would put persons of the same race or ethnic or national origin as the Claimant at a particular disadvantage when compared with other persons and the Claimant was put at such a disadvantage. However, we are satisfied that the Respondent has demonstrated to us that the application of the provision was a proportionate means of achieving a legitimate aim namely the keeping of health and safety within the Respondent for all the reasons set out in paragraph 3.11 of our findings of fact.”

The Employment Appeal Tribunal (Mr Justice Burton presiding) allowed Mr Redfearn’s appeal and remitted the case to another employment tribunal for re-hearing.

The employment tribunal was criticised in the judgment of the Employment Appeal Tribunal for failing to comply with binding authority in not construing “on racial grounds” sufficiently broadly and for dealing with the claim for direct discrimination “extremely shortly.” The employment tribunal had failed, it was held, to address the question “whether racial grounds had a significant influence on the outcome” (paragraph 52). The judgment continued:

“53.

…..We must therefore set aside the Judgment so far as it concerns direct discrimination because of the wholly flawed approach by the Tribunal: (1) in its disregard of the Showboat line of authorities, and thus its lack of understanding of the broadness of the meaning of the words “racial grounds” and (2) by virtue of its approach to Nagarajan, that is entirely ignoring the crucial question as to whether racial grounds, as so broadly defined, had a significant influence in the outcome, by simply concluding that the discrimination took place on health and safety grounds without going on to consider whether those health and safety grounds themselves were significantly based upon or influenced, or accompanied, by considerations of race.”

It was also held that the employment tribunal’s decision on indirect discrimination could not be upheld on the issue of justification and should be remitted for further consideration as to whether that defence was established, the onus being on Serco. The employment tribunal had not, it was held, indicated how, or upon the basis of what evidence, it came to the conclusion that the dismissal of Mr Redfearn was a proportionate means of achieving the aim of health and safety (see paragraph 61). There had been no consideration of the point that Mr Redfearn was already doing temporarily a job, which involved no contact with patients or fellow employees, or of alternatives to dismissal.

Serco appeals from that decision with the permission of Brooke LJ granted on 9 September 2005.

The question for this court is whether there was an error of law in the decision of the employment tribunal that the dismissal of Mr Redfearn was not an act of direct or indirect race discrimination. I shall deal with each head of discrimination in turn.

Direct discrimination

Did the tribunal make an error of law in holding that the dismissal was not “on racial grounds” within the meaning of the 1976 Act?

The answer depends, first, on the construction of the 1976 Act and, secondly, on its application to the facts found by the tribunal. Regard must be had to the anti-discrimination purposes for which the legislation was enacted, the context of the direct discrimination provisions, the language in which those provisions were drafted and the consequences of adopting one possible interpretation of the expression “on racial grounds” rather than another possible interpretation. As the tribunals below appreciated, the decision of the EAT (Browne–Wilkinson J presiding) in Showboat and the later authorities which have followed it, are very much in point: see Weathersfield t/a Van and Truck Rentals v. Sargent [1999] ICR 425 at pages 429H and 434B ; Carter v. Ahsan (UKEAT 0907/03 21 June 2004) at paragraphs 69-75.

The cases demonstrate that discrimination “on racial grounds” is not confined to less favourable treatment on the ground of the colour or race of the claimant. It is accepted that A can be liable for discriminating against B on the ground of C’s colour or race. In other words the racial characteristic of C, rather than that of B, the victim of the less favourable treatment, may be a racial ground of the less favourable treatment of B by A and therefore direct discrimination by A against B. If that were not so, cases plainly within the purposes of the 1976 Act would fall outside its scope. There is no reason in the policy of the 1976 Act or in its language why its provisions should not cover the case where the colour or race of the claimant and the respondent are the same, so that it is possible for a white person to discriminate against another white person on racial grounds where the difference in race is that between the discriminator and a third person, not between the discriminator and the person discriminated against.

Showboat Entertainment Centre v. Owens [1984] ICR 65, following the earlier case of Zarcynska v. Levy [1979] ICR 184, illustrates the point. Direct discrimination against an employee on racial grounds occurred when an employee was dismissed for disobeying his employer’s unlawful instruction not to admit black customers to an entertainment centre. The black customers were not in fact treated less favourably, as the white employee refused to carry out the unlawful order to treat them less favourably. It was the white employee who was treated less favourably “on racial grounds” because he was dismissed for refusing to carry out his employer’s racially discriminatory policy or practice to discriminate against others on racial grounds.

The approach in Showboat is not confined to cases of an employer pursuing a policy of race discrimination and implementing it by giving a racially discriminatory instruction to an employee, who is then treated less favourably by being dismissed for not carrying it out. White persons would also be treated less favourably than other white persons on the ground of colour in the following examples: the case of a white employer who dismisses a white employee for marrying a black person (see Race Relations Board v. Applin [1975] AC at 289-290) and, outside the employment context, the case of a white publican who refuses to admit or serve a white customer on the ground that he is accompanied by a black person (see Race Relations Board v. Applin [1973] 1 QB 815 at 828A-E.)

The difference between the parties was as to the ambit of the ratio of Showboat. Mr Bowers submitted that the employment tribunal had taken too narrow a view of the ratio of Showboat. He pointed to the width of the expression “on racial grounds” in the 1976 Act and he relied on passages in the judgment of Showboat to support the proposition that the expression “on racial grounds” covers any case in which the discriminator’s less favourable act was “significantly informed by racial considerations or racial attitudes” or was “referable to race”, or was taken on the basis of racial considerations or racial attitudes or associations, even if the race was that of a third party. The less favourable treatment of Mr Redfearn in this case (his dismissal) was, Mr Bowers argued, covered by the legislation, because it was significantly influenced by considerations of the Asian race of the customers and employees of Serco, with whom Mr Redfearn had contact during his employment. The health and safety grounds for dismissal relied on by Serco and accepted by the employment tribunal and the concerns expressed by UNISON to Serco were all associated with the Asian origin of the passengers in the buses and a significant number of Serco’s employees and the actual or perceived attitudes of Mr Redfearn to race.

Mr Bowers cited passages from Showboat which he submitted supported the ratio derived by him from the judgment -

“(page 70B) But the words “on racial grounds” are perfectly capable in their ordinary sense of covering any reason for an action based on race, whether it be the race of the person affected by the action or of others.”

“(page 71H) We therefore conclude that section 1(1) (a) covers all cases of discrimination on racial grounds whether the racial characteristics in question are those of the person treated less favourably or of some other person. The only question in each case is whether the unfavourable treatment afforded to the claimant was caused by racial considerations.”

“(page 73C) …A can discriminate against B on the ground of C’s colour. Once this point is reached, there seems to be no stopping point short of holding that any discriminatory treatment caused by racial considerations is capable of falling within section 1 of the Act of 1976.”

Mr Bowers accepted that, as a matter of causation, it would have to be shown that race was a substantial and effective cause of the act or decision that constituted less favourable treatment, but the employment tribunal had erred in ruling that a case such as this was outside the expression “on racial grounds” altogether, so that the causation stage was never reached. He pointed out that Serco’s motive for acting as it did (to protect its customers and its workforce) was irrelevant to liability for race discrimination; that racial considerations did not have to be the sole reason for or influence on the treatment (see Nagarajan v. London Regional Transport [1999] IRLR at paragraph 19); and that the defence of justification (such as health and safety grounds) was not available in a case of direct discrimination ( such as for industrial relations reasons see Ex parte Westminster City Council [1984] IRLR 230 at paragraph 31). As for the policy of the 1976 Act, he said that there was no warrant for confining it to the protection of ethnic minorities. Mr Redfearn was entitled to be protected from race discrimination as much as anyone else.

Mr Bowers submitted that Serco’s decision to dismiss Mr Redfearn was based on considerations relating to the race of third parties, their perceived hostility to his views and his perceived attitude to the race of third parties. That was direct discrimination “on racial grounds.” The employment tribunal had misapplied the law. Race considerations had significantly influenced the decision to dismiss on “health and safety grounds” which could not be relied on as a justification for direct race discrimination. Mr Bowers argued that any concern on the part of a tribunal or court about the consequences of appearing to permit racist conduct, as might occur in allowing a claim like the present case, could be dealt with at the stage of remedy.

In my judgment, the ratio of Showboat advanced by Mr Bowers is far too wide. His citation of selected passages from the judgment must be read in the context of the judgment as a whole. His sweeping proposition is wrong in principle, is inconsistent with the purposes of the legislation and is unsupported by authority. His proposition covers cases that would produce consequences at odds with the legislative aim. Taken to its logical conclusion his interpretation of the 1976 Act would mean that it could be an act of direct race discrimination for an employer, who was trying to improve race relations in the workplace, to dismiss an employee, whom he discovered had committed an act of race discrimination, such as racist abuse, against a fellow employee or against a customer of the employer. I am confident that that is not the kind of case for which the anti-discrimination legislation was designed.

The essence of Showboat is that an employee who refuses to implement his employer’s racially discriminatory policy is entitled to be protected from less favourable treatment under the 1976 Act. The use of the employee to implement the employer’s racially discriminatory policy means that “racial grounds” operate directly in the less favourable treatment of the employee, whether the race or colour in question be that of the employee or that of a third party. Mr Bowers’ proposition goes far wider so as to embrace cases in which the employer, far from seeking to implement a racially discriminatory policy contrary to the policy of the 1976 Act, is acting to eliminate race discrimination in accordance with the policy of the 1976 Act. According to Mr Bowers (subject to his points on causation and remedy) the employee would be entitled to receive the same protection under the 1976 Act from unfavourable treatment, such as dismissal, however racially discriminatory he was towards third parties contrary to his employer’s instructions.

Mr Bowers’s proposition turns the ratio of Showboat and the policy of the race relations legislation upside down. It would mean that any less favourable treatment brought about because of concern about the racist views or conduct of a person in a multi-ethnic workplace would constitute race discrimination. The ratio of Showboat is that the racially discriminatory employer is liable “on racial grounds” for the less favourable treatment of those who refuse to implement his policy or are affected by his policy. It does not apply so as to make the employer, who is not pursuing a policy of race discrimination or who is pursuing a policy of anti-race discrimination, liable for race discrimination.

In this case it is true that the circumstances in which the decision to dismiss Mr Redfearn was taken included racial considerations, namely the fact that Serco’s customers were mainly Asian and that a significant percentage of the workforce was Asian. Racial considerations were relevant to Serco’s decision to dismiss Mr Redfearn, but that does not mean that it is right to characterise Serco’s dismissal of Mr Redfearn as being “on racial grounds.” It is a non-sequitur to argue that he was dismissed “on racial grounds” because the circumstances leading up to his dismissal included a relevant racial consideration, such as the race of fellow employees and customers and the policies of the BNP on racial matters. 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. 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.

In my judgment, the employment tribunal was correct in law in deciding that Mr Redfearn was not dismissed “on racial grounds.” The grounds of dismissal were not racial. They did not become racial grounds because Serco dismissed him in circumstances in which it wished to avoid the perceived detrimental effects of Mr Redfearn’s membership of, and election to office representing, the BNP, which propagated racially discriminatory policies concerning non-white races who formed part of Serco’s workforce and customer base.

I would also reject the alternative argument advanced by Mr Bowers on the appeal (it was not raised in the employment tribunal) that this was a case of direct discrimination, because Serco adopted race-based criteria for dismissing him i.e. his membership of the BNP, which is confined to white people. So, Mr Bowers argued, Mr Redfearn was dismissed because he was white and that would be “on racial grounds.” He cited James v.Eastleigh BC [1990] ICR 554 in which it was held that there was direct sex discrimination by the council adopting a policy for free entry to a leisure centre by reference to the discriminatory state pension age, which was 65 in the case of all men and 60 in the case of all women. That was a criterion which directly discriminated between men and women in treating women more favourably than men “on the ground of their sex.”

This is a very different case. Mr Redfearn was treated less favourably not on the ground that he was white, but on the ground of a particular non-racial characteristic shared by him with a tiny proportion of the white population, that is membership of and standing for election for a political party like the BNP. Serco was not adopting a policy which discriminated on the basis of a dividing line of colour or race. Serco would apply the same approach to a member of a similar political party, which confined its membership to black people. The dividing line of colour or race was not made by Serco, but by the BNP which defines its own composition by colour or race. Mr Redfearn cannot credibly make a claim of direct race discrimination by Serco against him on the ground that he is white by relying on the decision of his own chosen political party to limit its membership to white people. The BNP cannot make a non-racial criterion (party membership) a racial one by the terms of its constitution limiting membership to white people. Properly analysed Mr Redfearn’s complaint is of discrimination on political grounds, which falls outside the anti-discrimination laws.

Mr Bowers raised a preliminary point by questioning the grounds on which Serco had appealed to the Employment Appeal Tribunal and to this court on the issue of indirect discrimination.

I am satisfied that in the appeal to the Employment Appeal Tribunal Serco raised the point that the employment tribunal had misapplied the 1976 Act on the issue of the application of a “provision, criterion or practice” in section 1(1A) and as to whether persons of the same race were put at a “particular disadvantage” when compared with others. The same ground was identified more clearly in the grounds of appeal to this court, in which Serco took the point on the misapplication of the law on indirect discrimination by contending that Mr Redfearn had not identified “the policy, criterion or practice” relied upon, or the relevant pool relied upon or that there was any relevant disparity. The point is that, in the absence of such particulars, the tribunal should not have even been considering a claim of indirect discrimination, quite apart from the finding of justification, if there was in fact indirect discrimination.

In addition to defending the employment tribunal’s conclusion on justification as a finding of fact which the tribunal was entitled to make on the evidence, Mr Pannick contended that there was in truth no case raised by Mr Redfearn of indirect discrimination against him that required justification by Serco.

For indirect discrimination contrary to subsection (1A) it is necessary to identify a “provision, criterion or practice” which Serco has applied or would apply equally to persons not of the same race or colour. None was identified (a) in the originating application, or (b) in any amendment to it, or (c) in the skeleton argument put before the employment tribunal, which did not refer at all to the requisite elements of a case under subsection (1A). Mr Redfearn accordingly failed to present the tribunal with a case, which satisfied the requisite elements of a claim for indirect race discrimination and upon which the tribunal could properly make a finding of indirect race discrimination.

The employment tribunal appears to have attempted itself a version of a “provision, criterion or practice” in paragraph 5.6 of its decision (see paragraph 28 above). However, it is formulated too narrowly (membership of the BNP) to be meaningful. A provision of “membership of the BNP” could not be applied to a person who was not of the same colour as Mr Redfearn, because only persons of the same colour as him (white) are eligible to be members of the BNP. A more general and meaningful provision along similar lines would be one applying to membership of a political organisation like the BNP, which existed to promote views hostile to members of a different colour than those that belonged to the organisation. If such a provision were applied, however, it would not put persons of the same race as Mr Redfearn “at a particular disadvantage” when compared with other persons within section 1(1A) of the 1976 Act. All such political activists would be at the same disadvantage, whatever colour they were.

In those circumstances it is unnecessary to deal in detail with the issue of justification which was resolved in favour of Serco, but which has been criticised by Mr Bowers and by the Employment Appeal Tribunal.

The employment tribunal concluded that the policy was a proportionate means of achieving a legitimate aim, that is maintaining health and safety within Serco’s business and it relied on the findings of fact summarised above. Mr Bowers contended that the employment tribunal had failed to make a specific finding of fact that the continued employment of Mr Redfearn would constitute a health and safety risk. It should have conducted a critical evaluation of the evidence for the alleged justification and made proper findings of fact. Instead the employment tribunal had simply accepted Serco’s alleged justification. It had failed to consider other non-discriminatory ways in which Serco could achieve its aim of avoiding health and safety reasons at work, such as confining him to a position that did not require contact with Asian passengers, for example on the mail run conducted by him at the date of his dismissal. Alternatively, Mr Bowers submitted that the finding of a health and safety risk was perverse and lacking in proper reasons.

I would definitely reject the perversity ground of challenge. The tribunal made findings of fact open to them on the evidence of Mr Binnington, which it accepted. The employment tribunal is open to criticism, however, for lack of more detailed critical scrutiny of the proportionality of the health and safety ground as justifying the dismissal of Mr Redfearn, weighing the justification for the discrimination against its discriminatory effect: see Allonby v. Accrington and Rossendale College [2001] ICR 1189 at paragraphs 26-29. I do not need to express a concluded view as, for the reasons already given, I do not consider that a case of indirect discrimination against Serco was ever properly put to the tribunal or made out.

Mr Bowers relied on Articles 9, 10 and 11 of the Convention and the prohibition of discrimination in Article 14 relating to the enjoyment of the Convention rights. He submitted that less favourable treatment arising from membership of a political party is an interference with those Convention rights which had to be justified and that this should have been taken into account in deciding whether indirect discrimination was justified.

He also cited section 3 of the 1998 Act and the decision of this court in X v.Y [2004] ICR 1634, an unfair dismissal case relating to the interaction between section 98 of the 1996 Act and section 3 of the 1998 Act. He submitted that a similar approach should be taken to the race discrimination legislation when considering whether the employer had used a proportionate means of achieving a legitimate aim in order to give effect to the provisions so as to be compatible with Convention rights.

The 1998 Act does not assist Mr Redfearn in this case. He is not entitled to make a claim under it as Serco is not a public authority. Section 3 of the 1998 Act does not assist, as there is no respect in which the relevant provisions of the 1976 Act are incompatible with the Convention rights. As for justification under the 1976 Act I have already explained that it does not arise, as no case of indirect discrimination has been made out.

Mr Pannick submitted that, as regards freedom of expression (Article 10) and freedom of association (Article 11), Article 17 of the Convention applies, as Mr Redfearn is seeking to use the Convention to protect views that are incompatible with the Convention and to prevent Serco from dissociating itself from a person who belongs to a party propagating racist views. Article 17 states-

“Nothing in this Convention may be interpreted as implying for any state, group, or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

Mr Pannick cited Glimmerveen v. The Netherlands (Application No 8348/78 11 October 1979) and Norwood v. United Kingdom (2004) 40 EHRR SE 11.1, the latter being a case in which a member of the BNP claimed that his freedom of expression under Article 10 was violated by criminal proceedings against him for displaying a racial poster (an attack on all Muslims in the United Kingdom) in the window of his flat. His claim was rejected as inadmissible on the ground that Article 17 of the Convention prevented individuals or groups who acted in a way that was incompatible with the values proclaimed and guaranteed by the Convention, notably tolerance, social peace and non-discrimination, from exploiting in their own interests the principles enunciated by the Convention.

It is unnecessary to express a view on the point, as Serco’s appeal succeeds without it. In any case, this point was not raised before the employment tribunal, and I do not consider that would be right to decide this point when raised for the first time on the appeal.

The employment tribunal’s decision to reject Mr Redfearn’s complaints of direct and indirect race discrimination is not flawed by an error of law. The Employment Appeal Tribunal was not entitled to set the decision aside and remit the matter to another employment tribunal for re-hearing.

I would allow Serco’s appeal and restore the order of the employment tribunal dismissing Mr Redfearn’s claim for race discrimination.

I agree.

I also agree.