The British National Party ('BNP'), 'religion or belief' and race discrimination - new law from 30th April 2007

The British National Party (‘BNP’), ‘religion or belief’ and race discrimination

new law from 30th April 2007

In June 2005 a case was decided against someone wanting a job. That person was an active member of the British National Party. The case turned on what the religious discrimination rules covered. Those rules are found in the Employment Equality (Religion or Belief) Regulations 2003. At the moment they cover “any religion, religious belief or similar philosophical belief “. The particular case was called Baggs v Fudge. All the parties accepted that Mr Baggs had been turned down because he was an active member of the British National Party. To win his case for religious discrimination he would have to show that his political philosophical belief was covered by the regulations.

The Tribunal held that for a political or philosophical viewpoint to come within the regulations it had to be similar in nature to a religious belief. This seems to be a correct use of the word ‘similar’ in the definition of religion or belief. The Tribunal decided that Mr Baggs was not discriminated against on the ground of his religion or belief because the BNP was a political party not a religion, or a set of religious beliefs, or a set of similar philosophical beliefs.

The Government has decided to amend the Employment Equality (Religion or Belief) Regulations 2003. The amendment is to remove the word ‘similar’ from the previous definition. It means that instead of “any religion, religious belief or similar philosophical belief” the definition will become “any religion, or religious or philosophical belief”.

The amendment will come into force on 30th April 2007. Clearly, the amendment is designed to remove the requirement that the philosophical belief be similar to a religious belief or religion. Religions have organised followers, a consistent belief system and usually an organisation. A philosophical belief now need not be similar to a religion to be covered. Clearly, therefore, we are going to see new cases testing what philosophical beliefs are covered. Whether this includes the political beliefs of the British National Party remains to be seen but some poor employer who refuses a job to a BNP member is likely to be the one to have to pay for this debate to take place in a court.

Readers are reminded, however, of the Bradford bus driver, Mr Redfearn. He became a local councillor for the British National Party and as a result was dismissed for health and safety reasons. The court of appeal held that he did not suffer racial discrimination. Mr Redfearn drove buses for Serco Ltd, which had a contract with Bradford City Council. 35% of Serco’s workers were of Asian origin as were between 70 and 80% of its customers. After his election, Serco feared a violent and hostile reaction from other employees and upset, anxiety and/or anger from Asian clients. As a result it dismissed Mr Redfearn “on the grounds of health and safety”. Mr Redfearn claimed race discrimination. He lost in an Employment Tribunal but won his appeal to the Employment Appeal Tribunal. That court held that he had been dismissed “on racial grounds” within the meaning of s.1(1) of the Race Relations Act 1976.

His employer Serco appealed to the Court of Appeal. That court had to decide what the phrase “on racial grounds” meant in this context. It decided that it did not include cases in which the employer’s action was “significantly informed by racial considerations or racial attitudes”, or was “referable to race” (as argued by Mr Redfearn) as that was too wide a use. It decided Mr Redfearn had not been dismissed “on racial grounds” simply because in making the decision to dismiss his employer had taken into account racial matters such as the race of his colleagues and customers nor his views on race.

It was a sensible decision as if Mr Redfearn had won his case one could expand the decision to cover cases where other considerations of race played a part in the dismissal. An example would be a case of being dismissal for racial abuse. Loosely speaking that dismissal might be ‘on racial grounds’ but after the Serco case it is clearly not covered by the Race Discrimination laws.

Once the law on religious discrimination changes it is possible that the amended definition of “belief” will give protection to members of the BNP. Although there are important national issues of freedom of speech and belief at issue but also the practical issues of what does an employer do when a BNP member wants a job!