Serco Ltd v Redfearn

Direct race discrimination may arise where an employee is treated adversely for refusing to implement the employer’s racially discriminatory policy, even though the relevant racial characteristic is that of a third party. It does not arise merely because racial considerations form part of the circumstances in which an employer acts to prevent the effects of racist views or conduct.

For indirect discrimination under Race Relations Act 1976, the claimant must identify a provision, criterion or practice capable of equal application which puts his racial group at a particular disadvantage. A restriction defined by membership of a whites-only political party could not satisfy that requirement; a wider restriction concerning comparable political activity did not create a racial disparity.

The respondent, a white employee and BNP councillor, was summarily dismissed by his employer after concerns arose about the consequences of his public BNP membership for Asian passengers, employees, safety, contracts and reputation. He had insufficient service to bring an unfair-dismissal claim and complained instead of direct and indirect race discrimination under the Race Relations Act 1976.

The Employment Tribunal dismissed both claims. The Employment Appeal Tribunal allowed his appeal and ordered a rehearing: UKEAT/0153/05/LA. The employer appealed. The central issue was whether dismissal in those circumstances was direct or indirect discrimination on racial grounds.

1. Appeal allowed. Mummery LJ, with whom Dyson LJ and Sir Martin Nourse agreed, restored the Employment Tribunal’s dismissal of the race-discrimination claim.

2. The expression “on racial grounds” is not confined to the race of the claimant. Under Race Relations Act 1976, an employee may be protected where he is dismissed for refusing to implement an employer’s racially discriminatory policy directed at third parties. That was the essential effect of Showboat Entertainment Centre v Owens [1984] ICR 65.

3. That principle did not apply here. The employer was not implementing a racially discriminatory policy through the respondent. It acted because of perceived health-and-safety, operational and reputational consequences of his public BNP role in a workforce and customer base including many Asian people. Racial considerations were part of the factual context, but they did not make the grounds of dismissal racial. Nor was membership of a party confined by its own constitution to white people a racial criterion adopted by the employer. It was a non-racial political characteristic.

4. The indirect-discrimination claim was not properly made out. No provision, criterion or practice capable of equal application had been identified. A rule based on BNP membership could not apply to non-white persons, who were ineligible for membership. A wider rule concerning comparable political organisations would disadvantage political activists of every colour alike, not persons of the respondent’s race particularly.

5. It was therefore unnecessary to determine justification. The court nevertheless observed that proportionality ordinarily requires critical scrutiny and a balance between the justification and discriminatory effect. The Human Rights Act argument did not assist, and the Article 17 point was left undecided.

• Court of Appeal (Civil Division): Allowed Serco’s appeal and restored the Employment Tribunal’s dismissal of the race-discrimination claim: [2006] EWCA Civ 659 .
• Employment Appeal Tribunal: Allowed Mr Redfearn’s appeal, set aside the Employment Tribunal’s decision and remitted the case for rehearing: UKEAT/0153/05/LA.
• Employment Tribunal: Dismissed the claims of direct and indirect race discrimination in extended reasons sent on 2 February 2005.