Redfearn v Serco Ltd (trading as West Yorkshire Transport Service)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Dyson,Sir Martin Nourse |
| Judgment Date | 25 May 2006 |
| Neutral Citation | [2006] EWCA Civ 659 |
| Docket Number | Case No: A2/2005/1845 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 May 2006 |
[2006] EWCA Civ 659
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE BURTON
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Dyson and
Sir Martin Nourse
Case No: A2/2005/1845
UKEAT/0153/05/LA
MR DAVID PANNICK QC & MR CHRIS QUINN (instructed by Pinsent Masons) for the Appellant
MR JOHN BOWERS QC (instructed byMitchells) for the Respondent
Introduction
A claim for race discrimination contrary to the Race Relations Act 1976, as amended (the 1976 Act) was brought in the employment tribunal by a member of the British National Party (BNP) against his former employer. According to its constitution the membership of the BNP is confined to white people and the BNP is
"…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."
The dispute, which has been conducted against a background of the fundamental human rights of freedom of political belief, expression and association, mingled with race relations, trade union power, local politics and job security issues, needs to be analysed dispassionately in order to identify the legal questions for decision on the appeal. The only function of this court is to decide whether a question of law on the interpretation and application of the 1976 Act arises from the unanimous decision of the employment tribunal to dismiss the claim. The Employment Appeal Tribunal disagreed with the employment tribunal's interpretation and application of the 1976 Act and ordered the case to be re-heard by a different tribunal.
It is not the function of this court either to overturn findings of fact which the employment tribunal was entitled to make on the evidence before it or to become embroiled in the politically controversial aspects of the dispute. The court is grateful for the expert assistance received from Mr David Pannick QC for the appellant and Mr John Bowers QC for the respondent in this sensitive area of the law. In the best traditions of the English Bar they have brought objectivity and moderation, as well as clarity and courage, to their excellent submissions.
Background to the appeal
Serco Ltd (Serco) trades as West Yorkshire Transport Service and supplies transport services to public authorities, including the Bradford City Council. Its buses are used to transport adults and children with physical or mental disabilities in the Bradford area. The majority of the passengers are Asian in origin.
Mr Redfearn, who is white and is himself physically disabled, was employed by Serco from 5 December 2003 until he was dismissed on 30 June 2004 by the managing director, Mr Binnington, and another senior Serco official. Initially Mr Redfearn worked as a driver's escort. Then he was promoted to driver. At the time of his dismissal he was employed on a temporary assignment to drive a vehicle delivering mail to Council offices. He was regarded as a satisfactory employee. There had been no complaints about his work or his conduct at work. Mr Redfearn said that his Asian supervisor, with whom he got on very well, nominated him for an award of first class employee status.
On 26 May 2004 an article appeared in the Bradford Telegraph and Argus identifying Mr Redfearn as a candidate for the BNP in the forthcoming local elections.
On 27 May 2004 Serco received a letter from UNISON saying that many of its members found Mr Redfearn's continued employment a "significant cause for concern, bearing in mind the BNP's overt and racist/fascist agenda." 70% to 80% of Serco's customers was Asian, as was 35% of its workforce. UNISON said that it looked to Serco "to take immediate action to ensure that our members are not subjected to the kind of racist hatred promoted by the BNP and its supporters." Representations were also received from the GMB union and from employees about personal safety and company property.
On 15 June Mr Redfearn was elected as a local councillor for the BNP. On 30 June 2004 Serco summarily dismissed him. It had received legal advice from Group level (Employment Relations) to the effect that his employment would present a risk to the health and safety of its employees and passengers. It would give rise to considerable anxieties to passengers and their carers, who placed a great deal of trust in the drivers and escorts. It would potentially jeopardise Serco's reputation, possibly leading to the loss of its contract with the Council.
Mr John Bowers QC, who appeared on behalf of Mr Redfearn, said that there was a strong case for describing the dismissal as "unfair": Mr Redfearn was recognised by Serco as a first class employee; it was not suggested that he had brought his political views into the workplace or that he was involved in, or supported the use of, violence in connection with his political views; the BNP, for which he had been democratically elected as a councillor, was a lawful political party; he was dismissed summarily without being given any opportunity to resign his membership or office in order to retain his job; and, at the time of dismissal, his work for Serco did not involve contact of a kind that would attract the health and safety fears relied on by Serco in dismissing him.
If this was an unfair dismissal case, there would be substance in the critical comments on the circumstances of Mr Redfearn's dismissal. It is not, in general, fair to dismiss a person from employment for engaging in political activities or for being a member of a political party propagating policies that are unacceptable to his employer, to his fellow employees, to trade union officials and members, or even to most of the population. We aspire to live in peace with one another in a politically free and tolerant society. Unpopular political opinions are lawful, even if they are intolerant of others and give offence to many. The right to stand for political office in a democratic election and to engage in political debate is entitled to respect, however unpalatable the person's political convictions may be to many others.
But this is not (I repeat not) an unfair dismissal case. Issues about whether Mr Redfearn's politics are acceptable or about whether Serco's treatment of him was fair and reasonable are not relevant to this appeal. The case that Mr Redfearn has chosen to bring against Serco is for race discrimination against him.
12. On 12 August 2004 Mr Redfearn presented to the employment tribunal a complaint of race discrimination. It is fair comment that this is not the kind of claim that one would expect a member of the BNP to make. There were, however, no other legal claims available to Mr Redfearn against Serco for the loss of his job.
He had insufficient length of service to entitle him make a claim against Serco under the Employment Rights Act 1996 (the 1996 Act) for unfair dismissal. The qualifying period under section 98 of the 1996 Act is 12 months. His case does not fall under the specific instances in the 1996 Act (such as pregnancy, protected disclosure and assertion of a statutory right) in which an employee is protected against unfair dismissal without having to satisfy the 1 year period of qualifying service: see section 108(3) . As the 1996 Act does not apply, the reasonableness or fairness of the parties' conduct is not an issue in the case. The question is whether it has been established that Serco has directly or indirectly discriminated against him on racial grounds. There is no law prohibiting discrimination on political grounds.
Mr Redfearn might have had a claim for wrongful dismissal, but he has suffered no damage, as we are told that he received pay in lieu of the period of notice to which he was entitled. He could not bring a claim against Serco under the Human Rights Act 1998 (the 1998 Act) for infringement of his Articles 9, 10 or 11 rights, as Serco is not a public authority.
In his originating application to the employment tribunal Mr Redfearn advanced a claim of direct race discrimination. He alleged that Serco had treated him less favourably under section 1(1) (a) of the 1976 Act "by dismissing him, on the ground of the Asian race and ethnic origin of the people the Applicant transported." No mention was made of a claim for indirect race discrimination, although Serco's Grounds of Resistance anticipated the possibility of such a claim by stating that
"7. If, which is not admitted, the conduct of the Respondent in dismissing the Applicant is held to amount to indirect discrimination, the Respondent will contend that the conduct was justifiable in all the circumstances."
The employment tribunal dealt with both direct and indirect discrimination. Unfortunately, there was no prior case management conference to identify the issues for the hearing and no amendment was ever made to the originating application formulating the basis of the indirect discrimination claim. The case was, however, argued at the hearing on behalf of Mr Redfearn (who then had different representation than he has now) along the lines that "since the BNP is a whites only party the dismissal is indirect racial discrimination." Serco was challenged to show that such discrimination was justified. In Mr Redfearn's skeleton argument in the employment tribunal reliance was also placed on section 1(1) (b) of ...
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