16 January 2009
by Arthur Collins REDFEARN
against the United Kingdom
lodged on 16 November 2006
STATEMENT OF FACTS
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was employed by Serco Limited (“Serco”) from 5 December 2003 to his dismissal with effect from 30 June 2004, formerly as a driver’s escort and latterly as a driver. Serco supplied transport services to public authorities. The majority of the passengers were Asian in origin. At the time of his dismissal, the applicant was assigned to deliver mail to local council offices. He had a supervisor who was of Asian origin in region and who had nominated the applicant for the award of “first-class employee”. There had been no complaints about his work or his conduct at work. He did not bring his political views into the workplace.
On 26 May 2004 a local newspaper article published in Bradford and the surrounding areas identified the applicant as a candidate for the British National Party (“the BNP”), a minority political group membership of which is confined to white people, in the forthcoming local elections.
On 27 May 2004 UNISON, the public sector workers’ trade union, sent a letter to Serco stating that many of its members found the applicant’s continued employment a “significant cause for concern, bearing in mind the BNP’s overt and racist/fascist agenda.” The letter made the point to Serco that it had a customer base consisting of 70-80% persons of Asian origin (and a workforce of some 35%). UNISON asked that Serco take immediate action to ensure its members were not subjected to racial hatred. Another trade union, GMB, and employees also made representations to Serco about the applicant’s continued employment.
On 15 June 2004 the applicant was elected as a local councillor for the BNP. On 30 June 2004 Serco summarily dismissed him. Serco cited potential health and safety risks, as the applicant’s continued employment would give rise to considerable anxiety among passengers and their carers, the potential loss of its contract with the local council and damage to its reputation, amongst other matters.
The applicant was not entitled to bring a claim for unfair dismissal in the Employment Tribunals of England and Wales because he lacked sufficient continuous service. Ordinarily, one year’s service is required to engage the right not to be unfairly dismissed set out in section 94 of the Employment Rights Act 1996. Instead, on 12 August 2004, the applicant lodged a statutory claim of racial discrimination with the Employment Tribunal pursuant to the Race Relations Act 1976.
The applicant claimed that he had been unlawfully discriminated against in that he had been treated less favourably on racial grounds when he was dismissed: his dismissal had been significantly influenced by considerations of the Asian race of the customers and employees of Serco. At the hearing before the Employment Tribunal the applicant argued that since the BNP is a whites-only party, the dismissal constituted indirect racial discrimination.
The Employment Tribunal considered both direct and indirect discrimination. In reasons set out in a judgment dated 2 February 2005 it dismissed the applicant’s claim in its entirety. It found that if there had been less favourable treatment, then it had not been on racial grounds, and that the treatment had been on health and safety grounds. In particular, it observed – as summarised by Mummery LJ in his judgment in the Court of Appeal – the following:
“In summary it found that Serco had received representations from UNISON, GMB and its own employees expressing concerns about Mr Redfearn’s membership of [the] 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 of the [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 [the] 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.”
The Tribunal held that the applicant was not entitled to rely on the race of the passengers or other employees in formulating his claim. Hence, the claim for direct discrimination was dismissed. The Tribunal found that there was a prima facie case of indirect discrimination, but went on to conclude that the company’s application of a provision that the applicant not be a member of the BNP in order to remain in its employment was a proportionate means of achieving a legitimate aim, namely ensuring the health and safety of passengers and employees.
The applicant lodged an appeal with the Employment Appeal Tribunal. On 27 July 2005 his appeal was upheld and the case was remitted to another tribunal for a re-hearing. The Employment Appeal Tribunal held that the Tribunal had erred in its construction of the phrase “on racial grounds” by failing to interpret its meaning broadly. The Tribunal had also failed to address the question “whether racial grounds had a significant influence on the outcome”. The appeal was also upheld on the basis that the Tribunal had erred in finding that justification was made out in respect of any indirect discrimination. The Tribunal had not indicated how it had come to the conclusion that the dismissal was a proportionate means of achieving the aim of ensuring health and safety and there had been no consideration of the fact that the applicant’s job involved no contact with patients or fellow employees or of any alternatives to dismissal.
On 9 September 2005 Serco was granted permission to appeal against the decision of the Employment Appeal Tribunal to the Court of Appeal.
On 25 May 2006 the Court of Appeal allowed Serco’s appeal and restored the order of the Employment Tribunal. Mummery LJ found the argument made on behalf of the applicant that he had been subjected to direct race discrimination to be wrong in principle and inconsistent with the purposes of the legislation.
In rejecting the claim of direct discrimination, the following was noted:
“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.”
In rejecting the claim of indirect discrimination, the following was noted:
“For indirect discrimination ... 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. ... Mr Redfearn ... 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.”
Lastly, as for the applicant’s contention that he had been subjected to less favourable treatment arising from membership of a political party contrary to his Convention rights under Articles 9, 10, 11 and 14 and that this should have been taken into account in deciding whether indirect discrimination had been justified, the following was stated:
“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.”
Leave for appeal to the House of Lords was refused on an unspecified date.
B. Relevant domestic law
Section 1 (1) (1) of the Race Relations Act 1976 states the following:
“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 A of the Race Relations Act 1976 states:
“ A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (IB), he applies to that other 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.”
The applicant complains under Articles 9, 10, 11 and 14 of the Convention that the United Kingdom failed to protect him from dismissal by reason of his membership of or involvement in or affiliation to a political party.
The applicant also complains under Article 13 of the Convention that he was left without an effective remedy in the domestic legal order.
QUESTIONS TO THE PARTIES
Was there a breach of the applicant’s rights under Articles 10 and 11 of the Convention, either taken alone or in conjunction with Article 14 of the Convention?
In particular, did the legal system adequately secure the respect for the rights of the applicant guaranteed by those Articles?