15 August 2005

In December 2003, the Employment Equality (Religion and Belief) Regulations 2004 ("the Regulations") came into force, prohibiting discrimination in employment on the grounds of religion or belief. Religion or belief was defined as "any religion, religious belief, or similar philosophical belief", causing speculation that some political beliefs could be protected under the Regulations.

Earlier this year, an individual who was not interviewed for a job because he was an active member of the British National Party ("BNP") was told by an employment tribunal that he could not rely on the Regulations (Baggs v Fudge). The tribunal said that the BNP is a political party, not a religion or similar philosophical belief, and therefore does not fall within the ambit of the Regulations. The individual was also ordered to pay costs, as the tribunal judged his claim to have had no reasonable prospects of success.

However, it now appears that members of the BNP can claim protection under the anti-discrimination legislation through the back door. In Redfearn v Serco Limited t/a West Yorkshire Transport Service the claimant was a postal delivery driver who was dismissed after it was discovered he had been elected as a local authority councillor representing the BNP. Prior to this, there had been no concerns regarding the claimant or his performance.
The claimant did not bring his claim under the Regulations, but under the Race Relations Act 1976 ("the RRA"). Under the RRA, in order to have a claim, the individual does not have to be discriminated against on the grounds of his or her own race, but only on racial grounds, which can be construed very widely. In this case, the EAT found that the decision to dismiss had been influenced by broad questions of race as a result of the claimant’s political beliefs and that therefore his dismissal was directly discriminatory on the grounds of race. The employer had no defence.

This case should serve as a warning to employers. Regardless of motive (which in this case appears to have been a well-meaning to avoid workplace violence), if decisions are made regarding employees which are influenced by race, there is a high risk of a discrimination claim - with the possibility of unlimited compensation. However distasteful an employer may find them, it is unwise to be swayed by employees’ political views manifested outside of the workplace where there is no complaint about the performance or conduct of the employee.