I’m still playing catch-up, but the leak of a BNP membership list was immediately dissected by curious employers, and the media, for the presence of police officers, teachers and similar public servants. I’m willing to bet at least a few small businesses have searched for their employees – especially those who are nervous of the consequences of any racial prejudice by their customer-facing employees.
But are resulting dismissals lawful? For any employees who have in excess of one year’s service, unfair dismissal legislation comes into play – any decision to dismiss based on BNP membership must be for a fair reason. Since it might be difficult to categorise membership as conduct or capability it may be that SOSR is the only recourse – membership alone without any special context to the dismissal is unlikely to be valid.
In the well known case of Serco Ltd v Redfearn [2006] EWCA Civ 659 a bus company dismissed a driver who came into contact with a significant number of ethnic minorities on the grounds that he was a member of the BNP. The Court of Appeal addressed whether this dismissal was ‘on racial grounds’ such as to constitute unlawful race discrimination under the Race Relations Act 1976, either because the race of customers was the ‘grounds’ or that the ‘grounds’ were BNP membership which is only open to whites. This argument relied on the Showboat line of authorities, which developed the principle that less favourable treatment on the grounds of race need not refer specifically to the race of the Claimant. The Court held that this very wide interpretation of ‘grounds’ was not correct – if it were, then an employee sacked for racist abuse would have been sacked ‘on the grounds’ of his victims’ race.
There is much to compare with this case and Ladele, which refers to it. It all goes to show that discrimination has moved far far away from ‘black letter’ interpretation, and that the only way the purpose of anti-discrimination legislation may fulful its intended purpose is by pragmatic application.
