The Court of Appeal has held in Redfearn v Serco that an employee who was dismissed after his election as a local BNP councillor was not discriminated against by his employer on the grounds of race. This decision reversed a previous controversial decision of the Employment Appeal Tribunal (EAT). 

Serco employed Mr Redfearn as a mail delivery van driver in a business that provided transport services for public authorities. A large number of the employer's workforce and clients were of Asian origin. Mr Redfearn had been a satisfactory employee but when the union advised his employer that he had been elected as a BNP councillor he was summarily dismissed. Serco relied on health and safety as the reason for dismissal on the basis that they feared a risk to employees and passengers from Mr Redfearn's political beliefs. Mr Redfearn's subsequent claim of race discrimination failed at the employment tribunal.

Under the Race Relations Act 1976, a person directly discriminates against another if "on racial grounds he treats that other less favourably than he treats or would treat other persons." Overturning the tribunal's decision, the EAT held that Mr Redfearn's dismissal was "on racial grounds". The EAT held that previous case law made it clear that the words "on racial grounds" should be interpreted widely. The EAT's view was that where a dismissal is significantly influenced by race, even if it is that of somebody else and not the claimant, it will be covered by race discrimination legislation.

The Court of Appeal has now disagreed with the EAT and upheld the tribunal's decision that Mr Redfearn was not dismissed "on racial grounds". In so deciding, the Court of Appeal stated that an employer who was not pursuing a policy of race discrimination or who was pursuing a policy of anti-race discrimination could not be liable for race discrimination. Although racial considerations were relevant to the dismissal of Mr Redfearn, he was no more dismissed "on racial grounds" than someone dismissed for racially abusing a colleague.

The Court of Appeal's analysis was that the reason for the employee's treatment was on grounds of a non-racial characteristic namely membership of, and standing for election for, the BNP. The Court viewed this as a complaint of discrimination on political grounds that fall outside the protection of the UK's discrimination laws.

This decision comes as a relief to employers. The controversial EAT judgment offered the potential for employees to bring claims of political discrimination by the back door as well as for employees dismissed for, for example, racially abusing a colleague to succeed with a claim for race discrimination. This unsatisfactory position no longer stands following the robust decision of the Court of Appeal.

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