RACE DISCRIMINATION

Redfearn v Serco Ltd: [2006] EWCA Civ 659

CA: Mummery, Dyson LJJ and Sir Martin Nourse: 25 May 2006

The applicant worked as a driver for the respondent employer which provided transport services for public authorities, the majority of the passengers being of Asian origin. Having been elected as a councillor for the BNP, a political party, confined to white persons, that propagated racially discriminatory policies concerning non-white races, and following representations from trade unions and fellow employees, the applicant was dismissed on the ground that he presented a risk to the health and safety of the employer's customers and employees. The applicant complained to an employment tribunal of direct and indirect race discrimination contrary to section 1 of the Race Relations Act 1976. The tribunal held that the dismissal was not "on racial grounds" for the purposes of section 1(1)(a) and rejected the claim of direct discrimination. In relation to indirect discrimination the tribunal held that the dismissal was justified. The Employment Appeal Tribunal allowed an appeal by the applicant and remitted the case for rehearing.

The employer appealed.

The Court of Appeal held:
(1) While an employer was liable "on racial grounds" within the meaning of section 1(1)(a) of the Race Relations Act 1976 for the less favourable treatment of an employee who refused to implement the employer's racially discriminatory policy or was affected by that policy, that principle could not be applied so as to make an employer who was not pursuing a policy of race discrimination, or who was pursuing a policy of anti-race discrimination, liable for race discrimination. Although racial considerations were relevant in the decision to dismiss the applicant, namely the fact that the employer's customers were mainly Asian as was a significant percentage of its workforce, the dismissal was not "on racial grounds" for the purposes of section 1(1)(a). Further, the applicant could not credibly make a claim of direct race discrimination on the ground that he was dismissed because he was white, that being a condition of membership of the BNP, thereby relying on the decision of his own chosen political party to so limit its membership.

(2) On a claim for indirect discrimination contrary to section 1(1A) of the Race Relations Act 1976, it was necessary to identify a "provision, criterion or practice" which the employer had applied or would apply equally to persons not of the same race or colour as the complainant, and the applicant failed to identify any such criteria before the employment tribunal. The formulation made by the employment tribunal, namely membership of the BNP, was too narrow to be meaningful, as it could not be applied to a person who was not of the same colour as the applicant, and the more general formulation of membership of a political organisation like the BNP, when applied, would not put persons of the same race as the applicant "at a particular disadvantage" when compared with other persons within section 1(1A). Accordingly, no case of indirect discrimination had been made out and the issue of justification did not arise.

The appeal was allowed.

Appearances: David Pannick QC and Chris Quinn (Pinsent Masons) for the employer; John Bowers QC (Mitchells, York) for the applicant.