The claimant said that he had been indirectly discriminated against on racial grounds. He was dismissed after being elected as a local councillor for the BNP. The employer considered that for Health and Safety reasons, his dismissal was necessary because of the upset and disturbance his continued employment would create with Asian co-workers and passengers.
Held: The claimant’s appeal succeeded. ‘the health and safety issues . . are issues which arise directly out of the membership by the Claimant of the BNP, which the Tribunal has already found was a party which was open to whites only; and that the direct consequence, as the Tribunal found, of the membership, of that party was the health and safety problem ‘having regard to the high preponderance of passengers and significant number of employees who are of Asian origin’, and this must be a reference to the possible anxiety suffered by these Asian passengers and employees – the latter being a reference to the 35% of employees who presumably might, like the passenger, be upset or anxious. There is no express reference to the employees who are not of Asian origin who might be roused to anger, as mentioned earlier in the Judgment. And then . . the Tribunal again makes entirely clear its conclusion that the action was taken ‘because of the Respondent’s concern in relation to its passengers and employees of Asian origin.” The employer might arguably be accused of deciding that no member of the BNP could be employed by it. A dismissal on health and safety grounds might be based on racial considerations (given the emphasis on Asian colleagues and passengers) and therefore be unlawful. The tribunal had asked itself the wrong question and had erred in law. ‘The Appeal Tribunal must be in a position to be satisfied that the employment tribunal has carried out its job. Absence of reasons is one of the indications that the employment tribunal has not carried out its job.’ The case was remitted to a different tribunal.
Judges:
The Honourable Mr Justice Burton
Citations:
[2005] UKEAT 0153 – 05 – 2707, UKEAT/0153/05, [2005] IRLR 744
Links:
Statutes:
Race Relations Act 1976 Amendment Regulations 2003, Race Relations Act 1976, Council Directive of 29 June 2000/43/EC
Citing:
Cited – Weathersfield Ltd (T/a Van and Truck Rentals) v Sargent CA 10-Dec-1998
The employer, a vehicle hire operator, explained to the Claimant employee following her appointment as a receptionist their policy that if she received an enquiry from any coloured or Asians, judging by their voices, she was to tell them that there . .
Cited – Showboat Entertainment Centre v Owens EAT 28-Oct-1983
The employer had dismissed an employee who had refused to comply with a discriminatory instruction by the employer to exclude blacks from the employer’s amusement centre. The tribunal at first instance had found that that was a dismissal ‘on racial . .
Cited – Din v Carrington Viyella Ltd EAT 1982
The court considered what actions could found a claim for racial discrimination: ‘What has to be enquired into is the reason why a particular course was adopted: the question is was it on racial grounds?’ The court deprecated any consideration of . .
Cited – Regina v Commission for Racial Equality (ex parte Westminster City Council) QBD 1984
The council had dismissed a black road sweeper to whose appointment the trade union objected on racial grounds.
Held: The council’s motive for doing so, to avert industrial action, could not avail them. Woolf J said: ‘In this case although the . .
Cited – O’Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School EAT 7-Jun-1996
The dismissal by a Roman Catholic school of a teacher who was pregnant by a priest, was on the grounds of pregnancy, and for an inadmissible reason. The pregnancy was an effective cause of the adverse treatment of the Appellant by her employer. . .
Cited – Carter v Ahsan EAT 21-Jun-2004
The claimant alleged discrimination in the failure to select him as a candidate. As a Pakistani, he was excluded by a decision not to select such a candidate for this constituency after allegations (later shown false) had been made against that . .
Cited – Abernethy v Mott Hay and Anderson CA 1974
Lord Cairns said: ‘A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee. If at the time of his dismissal the employer gives a reason for it, . .
Cited – Swiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim . .
Cited – James v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
Cited – Hardys and Hansons Plc v Lax CA 7-Jul-2005
The issue of justification of discrimination is rarely a simple matter. No margin of appreciation was to be allowed to an employer. It is for the tribunal to make its own judgment as to whether the practice complained of by the employee was . .
Cited – Igen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
Cited – Allonby v Accrington and Rossendale College and others CA 23-Mar-2001
The college failed to renew contracts for lecturers on one year fixed term contracts. A greater proportion of women were subject to such contracts, and the dismissal fell entirely on part time and hourly paid workforce. The condition which the . .
Cited – Sinclair Roche and Temperley (A Firm) v Heard, Fellows EAT 12-Apr-2005
EAT Practice and Procedure
Employment Tribunal Chairman, after a Case Management and Directions Hearing to delineate issues and set timetable for May hearing, delayed for three months before delivering . .
Cited by:
Appeal from – Serco Ltd v Redfearn CA 25-May-2006
The employee claimed that he had been discriminated against. He had stood as a candidate in local elections for the British National Party (BNP) party. His employers had dismissed him saying that his propagation of racially discriminatory polices . .
At EAT – Redfearn v The United Kingdom ECHR 16-Jan-2009
Statement of facts . .
At EAT – Redfearn v The United Kingdom ECHR 6-Nov-2012
The applicant alleged that his rights had been infringed by his dismissal from his post as driver transporting children and adults with physical and/or mental disabilities. He had stood for election as a candidate for the British National Party, a . .
Lists of cited by and citing cases may be incomplete.
Discrimination, Employment
Updated: 03 July 2022; Ref: scu.229784
