CASE OF REDFEARN v. THE UNITED KINGDOM
Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association)
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicant was born in 1948 and lives in Bradford. 6. The applicant was employed by Serco Limited (“Serco”) from 5 December 2003 to his dismissal on 30 June 2004. Serco provided transport to local authorities, including Bradford City Council. 7. The applicant, who is white British, was employed formerly as a driver’s escort and latterly as a driver. As such, he was responsible for transporting children and adults with physical and/or mental disabilities within the Bradford area. The majority of his passengers were Asian in origin. There had been no complaints about his work or his conduct at work and his supervisor, who was of Asian origin, had nominated him for the award of “first-class employee”. 8. 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”) in the forthcoming local elections. On the same day, the applicant was temporarily assigned to deliver mail to local council offices. 9. At the relevant time the BNP only extended membership to white nationals. According to its constitution it was: “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.” 10. 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 advised Serco that 70-80 percent of its customer base and 35 percent of its workforce were of Asian origin. UNISON asked that Serco take immediate action to ensure its members were not subjected to racial hatred. Another trade union, GMB, and a number of employees also made representations to Serco about the applicant’s continued employment. 11. On 15 June 2004 the applicant was elected as a local councillor for the BNP. After taking legal advice Serco summarily dismissed him on 30 June 2004. Serco cited, inter alia, potential health and safety risks as the applicant’s continued employment would give rise to considerable anxiety among passengers and their carers. It also expressed concern that the applicant’s continued employment could jeopardise its reputation and possibly lead to the loss of its contract with Bradford City Council. 12. Ordinarily, one year’s service is required before an employee can bring an action for unfair dismissal under the Employment Rights Act 1996 (“the 1996 Act”), although this qualifying period does not apply where the dismissal was on grounds of pregnancy, race, sex or religion. The applicant therefore lacked sufficient continuous service to bring an action for unfair dismissal. However, on 12 August 2004 he lodged a statutory claim of race discrimination in the Employment Tribunal pursuant to the Race Relations Act 1976 (“the 1976 Act”). 13. The applicant claimed that he had been unlawfully discriminated against as his dismissal constituted less favourable treatment on racial grounds. The racial grounds relied on were those of the passengers and employees of Serco who were of Asian origin. He further argued that since the BNP was a “whites-only” party, his dismissal also constituted indirect racial discrimination. 14. The Employment Tribunal gave judgment on 2 February 2005. It noted Serco’s concerns that the applicant’s continued employment might lead to difficulties with other employees; damage its relationship with the unions; lead to attacks on Serco’s minibuses which would jeopardise the health and safety of Serco’s staff, its vulnerable passengers, and the applicant himself; cause considerable anxiety amongst Serco’s passengers and those relatives/carers entrusting vulnerable passengers to its care; and damage its reputation so as potentially to place at risk existing contracts and future bids for work in the public sector and elsewhere. 15. The Employment Tribunal dismissed the claim of direct discrimination as it was satisfied that if any discrimination existed against the claimant it was not on racial grounds but rather on health and safety grounds. The Tribunal also dismissed the claim of indirect discrimination on the ground that the applicant’s dismissal was a proportionate means of achieving a legitimate aim, namely the maintenance of health and safety. 16. The applicant lodged an appeal with the Employment Appeal Tribunal. On 27 July 2005 his appeal was upheld on the ground that the Tribunal had erred in its construction of the phrase “on racial grounds” by failing to interpret its meaning broadly and had not indicated how it had come to the conclusion that the applicant’s dismissal was a proportionate means of achieving the aim of ensuring health and safety because, inter alia, there had been no consideration of any alternatives to dismissal. 17. On 9 September 2005 Serco was granted permission to appeal to the Court of Appeal. 18. On 25 May 2006 the Court of Appeal allowed Serco’s appeal and restored the order of the Employment Tribunal. Mummery LJ found the applicant’s submission that he had been subjected to direct race discrimination to be wrong in principle and inconsistent with the purposes of the legislation. 19. In rejecting the claim of direct discrimination, the Court of Appeal noted that: “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.” 20. 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.” 21. Lastly, with regard to 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 Court of Appeal stated that: “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.” 22. The applicant was refused leave to appeal to the House of Lords. 23. Under section 94(1) of the Employment Rights Act 1996, an employee has the right not to be unfairly dismissed by his employer. By section 98(1), an employer must show a reason for a dismissal falling within a category set out in section 98(2), which includes “conduct” or “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held”. Section 98(4) deals with fairness: “Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.” 24. However, paragraph 106 provides as follows: “(1) Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination.” 25. Section 108(3) of the Employment Rights Act provides a wide variety of exceptions from the one-year qualifying period, many of which derive from the United Kingdom’s implementation of European Community legislation in the field of employment. These exceptions include situations in which an employee has been dismissed on grounds of pregnancy or taking parental leave, refusing to comply with a requirement imposed in contravention of the Working Time Regulations 1998, or where the employee has made a public interest disclosure against the employer. Moreover, applicants alleging that they were dismissed on account of their race, sex or religion are also exempt from the one-year qualifying period. 26. 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.”