John Bowers QC

Title: The BNP cases: balancing the freedom from discrimination and the rights of free speech and association

This lecture explores the cases surrounding how both employers and trade unions are able to deal with issues of political belief, particularly membership of far right political parties. I examine the legal principles emerging from the cases of Redfearn v SERCO [2006] IRLR 623 and ASLEF v UK [2007] IRLR 361, both of which centred on the issue of BNP membership and explore how those cases reveal tensions between the law and policy in their different contexts.

It is necessary to sketch out the recent background to the debate. In Serco, in an employment context, Mr Redfearn, a BNP member, challenged his dismissal which was ostensibly on health and safety grounds, from his post as a bus driver for vulnerable (and largely Asian) passengers. He did so by pursuing a claim of race discrimination on the basis that his dismissal was, effectively, on "racial grounds". The case, which was ultimately unsuccessful in the Court of Appeal, gave rise to interesting considerations as to how broadly the Race Relations Act can be interpreted, how proximate the issues of race must be to the claimant in question and whether members of groups such as the BNP should be permitted to avail themselves of the protection of the Race Relations Act.

The second, ASLEF v UK, arose in a wholly different context, not under the Race Relations Act, and not as a claim by an employee against and employer, but as a claim before the European Court of Human Rights by a trade union in relation to its own rights to regulate its membership. The claim followed litigation by Mr Lee, again a BNP member, against ASLEF following his exclusion from membership. In accordance with s174 Trade Union and Labour Relations (Consolidation) Act 1992, ASLEF had been obliged to readmit Mr Lee to membership despite his views being, in their view, incompatible with the aims of the union.

In differing contexts both cases reveal the challenge, in practical terms, to employers and unions in dealing with those whose views they find inimical. They also reveal interesting legal issues of human rights interconnecting with employment law against an incomplete statutory background .

Mr Redfearn was a bus driver working alone providing transport to those with physical and mental disabilities in a largely Asian area of Bradford. He had been an exemplary worker. He was also a BNP member, who stood for and was elected to the local council to as a BNP candidate. Two weeks after his election, following concerns expressed by the local community and trades unions, he was summarily dismissed, ostensibly on the grounds that his membership and position within the BNP led to a health and safety risk to passengers (given the risk of demonstrations etc).

Mr Redfearn brought a claim of race discrimination before the Employment Tribunal. Mr Redfearn was careful not to bring his politics into the workplace, was disabled himself and had glowing work appraisals; he had not been involved in violence. The Tribunal found that he had not been dismissed on racial grounds but instead on grounds of health and safety. He appealed successfully to the EAT, which found that the Tribunal had wrongly understood the concept of racial grounds, and remitted the issue. Before the Tribunal could reconsider the case, Serco's appeal was heard by the Court of Appeal.

The Court of Appeal's decision, which I will discuss in more detail later, found that, following the earlier cases of Zarcynska v Levy, Showboat Entertainment Centre Limited v Owens, Weatherfield v Sargent and Carter v Ahsan, that discrimination "on racial grounds" is not limited to less favourable treatment on the grounds of the colour or race of the claimant. However, The Court of Appeal rejected Mr Redfearn's argument's as to the scope of the meaning of racial grounds: in effect rejecting that it was sufficient that the reason for the treatment was in some way connected to race, being "referable" to race. The Court of Appeal found that the grounds for dismissal were those of health and safety and that no direct discrimination had occurred. The Court also rejected an argument based upon indirect discrimination, finding that the policy of dismissing members of the BNP was a proportionate means of pursuing a legitimate, health and safety related, aim. Mr Redfearn's claim was therefore unsuccessful.

To understand the argument it is necessary to look both at the legislative provisions and case law leading up to Redfearn

Underlying any discussion are the provisions of the Race Relations Act 1976, and the key distinction between the wording used and that employed in the Sex Discrimination Act 1975. These differences give rise to what I will call the doctrine of "transferred discrimination" in the context of race.

The doctrine of transferred discrimination arises from a subtle difference in the language used in the definitions of "direct discrimination" in the Sex Discrimination Act 1975 and the Race Relations Act 1976. The Sex Discrimination Act 1975 makes it plain that less favourable treatment must be on the grounds of the sex of the particular complainant, that

"... a person discriminates against a woman if (a) on the ground of her sex he treats her less favourably than he treats or would treat a man ...".^¹

The Race Relations Act 1976 uses different language, referring simply to "racial grounds"-

"A person discriminates against another… if (a) on racial grounds he treats that other less favourably than he treats or would treat other persons ...".^²

This difference in language raised the possibility that a direct race discrimination claim could be pursued where a person alleged that he had been discriminated against, not on grounds of his own race, but on grounds of the race of some other person. Indeed, this possibility was recognised even before the Race Relations Act 1976 was passed, based on the language in the earlier Race Relations Act 1968.^³

In Race Relations Board v. Applin^⁴ this understanding was confirmed. the Race Relations Board sought to obtain an injunction against the Defendants themselves Nationazl Front members who were putting pressure on foster parents who lived in the Defendants’ neighbourhood not to accept foster children from different ethnic backgrounds. The Court of Appeal held that such conduct was unlawful on the basis that it amounted to incitement to discriminate against the children. However, Lord Denning MR was prepared to go further and find, in the alternative, that such conduct not only amounted to incitement to discriminate against the children, but also against the local authorities who were seeking to place the children with foster parents. Drawing on a hypothetical example of two white women who were refused entry into a public house because they were accompanied by black men, and referring to the definition of direct discrimination in the 1968 Act, Lord Denning MR stated:

"That definition of discrimination is wide enough to cover the case of the two women. They are treated less favourably than other women on the ground of colour. Similarly in this case, [the foster parents] would discriminate against the local authorities on the ground of colour if they said: 'We will take white children only.' "

Stephenson LJ agreed, concluding that "A can discriminate against B on the ground of C's colour, race or ethnic origin".^⁵ When the case was appealed to the House of Lords, Lord Simon of Glaisdale, the only one of the Law Lords to deal with the point, concurred saying, of restricting the operation of direct race discrimination to less favourable treatment occasioned to the complainant personally,

"Not only would this involve reading into the subsection a word which is not there; it would also mean that some conduct which is plainly within the 'mischief' would escape - for example, discriminating against a white woman on the ground that she had married a coloured man."

In the Applin case, therefore, all of the judges who considered the point held that it could be unlawful discrimination to treat an individual less favourably on grounds of the race, ethnic origin or nationality of another. The degree of connection with the issue of race has however proved elusive as the case law has developed.

The doctrine developed and widened significantly in a small number of cases, which have very similar facts, relating to the giving of discriminatory instructions.

In Zarczynska v. Levy^⁶ a white barmaid was instructed by her employer not to serve customers of certain racial origins. When she informed her employer that such an instruction was neither lawful nor reasonable, she was dismissed. Whilst she had insufficient service to successfully claim unfair dismissal, the EAT held that the employment tribunal did have jurisdiction to hear the complaint of race discrimination on the basis that the complaint was one of transferred discrimination. Relying on the dicta of Lord Denning MR and Stephenson LJ in Applin, the EAT was of the view that:

"... A can discriminate against B on the ground of C’s colour, race or ethnic origin. Can it not be said in the instant case that in dismissing a barmaid because she wanted to serve some coloured men, and not dismissing a barmaid who was prepared to apply the embargo, the employer treated the one less favourably than the other on racial grounds?"

The EAT considered that it was stretching the meaning of the statutory language by holding that Ms Zarczynska had been dismissed on racial grounds but stated:

"If this is not done the strict interpretation of the relevant sections taken as a whole may well create an absurd or unjust situation which Parliament would not have intended if they had contemplated its possibility."

The EAT declared itself to be "equally unhappy" with the "most unjust" suggestion that Ms. Zarczynska should be deprived of an opportunity to obtain compensation for losing her job because she tried to uphold the law forbidding racial discrimination

Similarly, in Showboat Entertainment Centre v. Owens,^⁷ Mr. Owens alleged that he had been dismissed by Showboat because he had refused to carry out a racially discriminatory instruction to exclude individuals from particular ethnic backgrounds from the amusement centre. Like Ms Zarczynska, he did not have qualifying service to bring a complaint of unfair dismissal but in relation to race discrimination, the EAT held that the phrase "racial grounds" was capable of a wide interpretation, so that it could refer to the race of someone other than the individual subjected to less favourable treatment. The EAT held:

"Certainly the main thrust of the legislation is to give protection to those discriminated against on the grounds of their own racial characteristics. But the words "on racial grounds" are perfectly capable in their ordinary sense of covering any reason for an action based on race, whether it be the race of the person affected by the action or of others."

As in Zarczynska, in Showboat, the EAT relied on policy reasons in order to justify the 'wider' view as to the meaning of "on racial grounds":

"We find it impossible to believe that Parliament intended that a person dismissed for refusing to obey an unlawful discriminatory instruction should be without a remedy. It places an employee in an impossible position if he has to choose being a party to an illegality and losing his job. It seems to us that Parliament must have intended such an employee to be protected so far as possible from the consequences of doing his lawful duty by refusing to obey an unlawful instruction".

The EAT concluded by setting out the relevant test for employment tribunals to apply. This test is, however, couched in extremely wide terms:

"The only question in each case is whether the unfavourable treatment afforded to the claimant was caused by racial considerations."

Finally^⁸, in Weathersfield Ltd. (t/a Van and Truck Rentals) v. Sargent,^⁹ Mrs. Sargent was informed on commencing employment with Weathersfield that she was not to hire out vans to individuals who were from ethnic minorities and that she was to inform such people that there were no vans available. Mrs. Sargent resigned. Again, Mrs. Sargent did not have sufficient qualifying service to bring a claim for unfair dismissal but brought a claim for race discrimination.

In the course of argument before the Court, and for the first time in this line of cases, the contrast in the language of the Sex Discrimination Act 1975 and the Race Relations Act 1976 was highlighted. Pill LJ (with whom Swinton-Thomas LJ and Beldam LJ agreed) rejected the suggestion that the wording in the Race Relations Act 1976 ought to be afforded the same meaning as the corresponding section of the Sex Discrimination Act. He specifically accepted that the dicta in the Showboat case provided for an extremely wide interpretation of the statutory provisions, but held that such an interpretation was, in his view, "justified and appropriate".^¹⁰

Thus it appears that the test to be applied in determining whether a decision is taken on "racial grounds" is whether the treatment was caused by racial considerations. This is a very broad test. It appears that any treatment which can be linked to race or racial factors should fall within the test and thus be discriminatory. Whilst this approach appears to have been acceptable in protecting those who were seeking to uphold anti-racist views the test is not couched simply in those terms. How then would the test fare when a more difficult question arose?

Which brings us back to the position in Serco v Redfearn. The decision to dismiss Mr Redfearn should, given the very broad test in Showboat, fall within treatment based upon racial considerations. The decision was inseparable from Mr Redfearn's political views which in turn had a racial content, that is his attitudes towards the race of others. Based on the Showboat test Mr Redfearn should have attracted the protection of the Race Relations Act. The test did not define the proximity of the race considerations to the claimant or the decision to dismiss: simply that they were a factor.

The Employment Tribunal found that the reason for Mr. Redfearn's dismissal was that his continued employment would present a risk to the health and safety of employees and passengers of Serco as it would render Serco's property open to attack given the strength of public feeling against the BNP. Moreover, Mr. Redfearn's public membership of the BNP would give cause for concern to the relatives of those entrusting vulnerable passengers to Serco. Furthermore, the continued employment of Mr. Redfearn might jeopardise the reputation of Serco on the basis that clients might associate it with the extreme policies of the BNP. As such, the Tribunal found that Mr. Redfearn was dismissed on health and safety grounds and not on racial grounds.

The EAT (presided over by Burton J (P)) allowed an appeal by Mr. Redfearn on the basis that (amongst other things^¹¹) the Employment Tribunal had not properly dealt with the Showboat line of authorities in its reasoning. During argument, however, the absurdity of the wide dicta in the Showboat case was pointed out by counsel for Serco. At paragraph 32 of its decision the EAT made reference to this submission:

"One example that arose in the course of argument was of a foreman who had treated black and white employees differently, and inappropriately and discriminatorily, and was then disciplined by his employer for having done so. Mr Langstaff QC submitted that that would be unfavourable treatment by the employer, and "on racial grounds" if those words are to be broadly construed, but the employer would have been doing so clearly not only with the best of motives but also with the purpose of furthering the intent of the race relations legislation. He submitted that if that example could fall within the definition of unfavourable treatment "on racial grounds" that would make a laughing stock of the legislation, and would be quite contrary to the intention of Parliament."

The EAT accepted that it would not have been the intention of Parliament to permit for such a claim under the Race Relations Act 1976 but stated:

"We agree that if some step is required to be taken to limit those who can take advantage of s.1(1)(a) of the Act that can, and should, be considered by Parliament, and not by judicial legislation."

The Court of Appeal allowed Serco's subsequent appeal. The essence of the reasoning of Mummery LJ^¹² is contained within paragraphs 46 and 47 of the judgment:

"In this case it is true that the circumstances in which the decision to dismiss Mr. Redfearn was taken included racial considerations, namely the fact that Serco's customers were mainly Asian and that a significant percentage of the workforce was Asian. Racial considerations were relevant to Serco's decision to dismiss Mr. Redfearn, but that does not mean that it is right to characterise Serco's dismissal of Mr. Redfearn as being on "racial grounds". It is a non-sequitur to argue that he was dismissed on "racial grounds" because the circumstances leading up to his dismissal included a relevant racial consideration, such as the race of fellow employees and customers and the policies of the BNP on racial matters. Mr. Redfearn was no more dismissed "on racial grounds" than an employee who is dismissed for racially abusing his employer, a fellow employee or a valued customer. Any other result would be incompatible with the purpose of the 1976 Act to promote equal treatment of persons irrespective of race by making it unlawful to discriminate against a person on the grounds of race.

"In my judgment, the employment tribunal was correct in law in deciding that Mr. Redfearn was not dismissed "on racial grounds". The grounds of his dismissal were not racial. They did not become racial grounds because Serco dismissed him in circumstances in which it wished to avoid the perceived detrimental effects of Mr. Redfearn's membership of, and election to office representing, the BNP, which propagated racially discriminatory policies concerning non-white races who formed part of Serco's workforce and customer base."

However, in holding that the grounds on which Mr. Redfearn was dismissed were not racial the Court of Appeal failed to articulate why Mr. Redfearn's case did not fall within the extremely wide dicta set out in the Showboat case, stating merely that to allow Mr. Redfearn's case to succeed would be incompatible with the purpose of the Race Relations Act 1976 and that the Court was "confident that that is not the kind of case for which the anti-discrimination legislation was designed."^¹³

It is difficult to avoid the conclusion that the Court determined the outcome of the case on an instinctive reaction to the facts. Whilst English Courts have frequently construed statutes purposively,^¹⁴ Mummery LJ simply asserts that Mr Redfearn's case does not fall within the scope of the doctrine of transferred discrimination, without providing guidance as to the true breadth of the doctrine. It appears clear that faced with a hard case the Court of Appeal shied away from any application of principle, resorting instead to an instinctive view that the outcome Mr Redfearn sought was undesirable.

So what are we to make of the cases and the limits of the transferred discrimination doctrine? In what circumstances are the issues of race sufficiently proximate to apply the doctrine and when are they too distant? If, as I have suggested, the cases to date have been instinctive reactions to particular sets of facts, what certainties can we draw from the results?

Redfearn demonstrates that English law has extended the doctrine of transferred race discrimination, as encapsulated by the Showboat test, beyond cases of discrimination by association to the discriminatory instructions cases. It is not however prepared to entertain cases where individuals are treated in a particular way because they have breached equal opportunities policies or legislation, or it is perceived that they have breached or might breach equal opportunities policies or legislation.

The question is whether this distinction can be justified as a matter of principle. In construing "racial grounds" can the test of considerations of race be sustained in such a way as to accommodate the claimants in the discriminatory instruction cases but to deny protection in the third category of cases?

The wide, Showboat test, necessarily broad so as to include discriminatory instructions has been narrowed to avoid "undesirable" results, such as protection for Mr Redfearn. That such a wide test might permit undesirable results was accepted by the Court of Appeal in Wheeler v. Leicester City Council.^¹⁶ That case involved an attempt to judicially review the decision of a local authority to ban a sports club from using certain recreational facilities on the basis that members of the club had been selected to play rugby in South Africa at a time when the policy of the local authority was to discourage sporting links with South Africa because of the apartheid policy. In that case, counsel for the club sought to argue that the council was discriminating against the club within the Showboat dicta since racial considerations were clearly involved in the decision of the council to ban the sports club from using the recreational facilities. Ackner LJ set out the relevant passage of the Showboat decision and then stated:

"... I cannot accept so wide a statement, which, as was apparent in the course of submissions, could produce consequences totally repugnant to the very purpose of the legislation."

"... the words I used in the passage cited by Ackner LJ from Showboat Entertainments Centre v. Owens… were too wide. It was not in dispute in that case that the conduct complained of constituted discrimination on racial grounds; the only issue was whether such discrimination had been exercised against the applicant."

On the Showboat test - where all that is required of an employment tribunal is to consider whether or not the individual's treatment was to any extent influenced by racial considerations^¹⁷ - Mr. Redfearn and an employee who racially abuses a colleague have been discriminated against on grounds of race since, in both these examples, racial considerations were at the forefront of the employers' minds when the decision to dismiss was taken.

Of course, Mummery LJ was right to suggest, in Serco v. Redfearn, that it could not have been the intention of Parliament that Mr. Redfearn or the hypothetical employee referred to above should benefit from the passing of the Race Relations Act 1976.^¹⁸ But, having developed a test which "stretches" the wording of the Act, based upon racial considerations, it is not legally principled to restrict that protection based upon value judgments, or to place those judgments in the hands of judges.

The test which ought to be applied in cases of association is: was the complainant treated less favourably than an actual or hypothetical comparator on grounds of the protected characteristic of an individual with whom the complainant is associating with or has associated with?^¹⁹ There are no undesirable consequences once this restriction is applied. The examples given in argument in Serco v. Redfearn would simply not be caught by the test. Further, the difficulties identified in running the comparison would also disappear. The difficulties experienced in the Showboat case stemmed from the fact that there is no readily apparent comparator. There was simply an instruction to the complainant and that instruction had a racial element to it. By contrast, in the example put forward in Applin, of an innkeeper excluding a white woman because she is accompanied by a black man, there is a readily apparent comparator in the form of the accompanying (associated) person. The treatment of the white woman should be compared to the treatment of another white woman, the race of whose partner is switched. It is only in cases of association that the claimant is able to point to a person or persons whose race is said to be relevant to the way the claimant has been treated. A comparison complying with section 3(4) can then be undertaken by considering how that claimant would have been treated if the race of the person(s) pointed to is switched.

An application to the ECHR is pending against the UK Government and is built on the fact that at the time of the case there was no general right to claim for dismissal on the grounds of political activity. The Employment Equality Religion or Belief Regs 2003 deal only with Religion or Belief which at the time meant "any religion religious belief or similar philosophical belief" which was held not to cover the BNP at tribunal level;. (eg Wingfield v North Cumbria Trust). This was amended by the Equality Act 2006 s77(1) to mean "any religious or philosophical belief" which h might just include the BNP.

The case of ASLEF v UK (and the proceedings that led up to that case) approach a similar issue from a different factual and legal angle. Mr Lee, a BNP member, joined ASLEF shortly before standing as a councillor for the BNP. He came to the attention of the Union and the police whilst handing out Islamophobic literature and harassing members of the Anti-Nazi League. He was expelled as a member of ASLEF as a result of his BNP membership.

Mr Lee brought a claim before the Employment Tribunal alleging that his expulsion was unlawful. He succeeded in his claim. ASLEF appealed to the EAT, which upheld ASLEF’s appeal and remitted the claim to the Employment Tribunal, where Mr Lee was again successful. He was readmitted by the Union, which did not appeal further.

ASLEF instead pursued a claim before the European Court of Human Rights against the UK. The crux of the claim was that the existing UK legislation, contained in s174 of the Trade Union and Labour Relations (Consolidation) Act breached Article 11 of the European Convention on Human Rights providing for freedom of association. The ECHR found, in February 2007, in ASLEF's favour. Whilst s174 was found to be an interference with Article 11 which was made in pursuit of a legitimate aim (protecting the rights of individuals), it was disproportionate and failed to strike the correct balance between the rights of the Union under Article 11 and Mr Lee's rights to freedom of expression under Article 10.

In deciding whether a right has been infringed, the ECHR must establish whether any restriction is prescribed by law, in pursuit of one of the legitimate aims set out and necessary in a democratic society i.e. satisfying a "pressing social need". Additionally, as established by the case law of the ECHR, the restriction must be proportionate. Proportionality can incorporate a number of factors, including the need to have adequately balanced any competing rights.

The restriction on a union's ability to exclude or expel members is contained in s174 which, as amended in 2004 (as a result of the EAT's judgement in Lee v ASLEF itself), provides;

d. The exclusion or expulsion is entirely attributable to conduct of his (other than excluded conduct) and the conduct to which it is wholly or mainly attributable is not protected conduct.

Protected conduct is defined by section 174(4) as being, having been or ceasing to be a member of a political party. Activities undertaken as a member of a political party are not, however, protected conduct. Conduct includes statements, acts and omissions.

The UK Government conceded that s174 did infringe the right to associate freely but argued that the infringement was permissible in that it was necessary, in a democratic society, to protect the rights and freedoms of others, in this case Mr Lee's right to hold and express political views in accordance with Article 10, which deals with freedom of expression.

The Court rejected the Government's contention. Having found that Article 11 involves the rights of unions to draw up their own rulebooks and administer their own affairs, the Court went on the conclude that just as an employee should be free to join, or not join, a union, so should a union be free to choose its members. Article 11 did not impose a duty to admit whoever wished to join^²⁰. Unions must therefore be free to decide, in accordance with their rules, questions regarding admission and expulsion^²¹. Thus Article 11 was engaged.

In deciding whether the restriction was justified by Article 11(2) the Court accepted that the restriction was both prescribed by law and in pursuit of a legitimate aim. However, in examining whether a fair balance had been struck between the rights of ASLEF and Mr Lee, the Government's position was rejected. Expulsion did not impinge, in any significant way, upon Mr Lee's freedom of expression, as Mr Lee was free to continue his political activities, nor, in the absence of a closed shop, did he suffer any prejudice.

This view of prejudice appeared to signal that there was, in reality, no benefit to be gained from union membership beyond the protection of livelihood in a closed shop situation. Given the Convention and Court's previous support for unions this conclusion provided a difficulty. However, on the facts, the Court was able to deal with this problem as follows:

"The Court has taken account of the fact that membership of a trade union is often regarded, in particular due to the trade union movement's historical background, as a fundamental safeguard for workers against employers' abuse and it has some sympathy with the notion that any worker should be able to join a trade union…However…ASLEF represents all workers in the collective bargaining context and there is nothing to suggest…that Mr Lee is at any individual risk of, or is unprotected from, any arbitrary or unlawful action by his employer".

Thus the Court acknowledged collective bargaining as a benefit afforded by union membership but, in the particular circumstances, effectively recognition of bargaining rights for the workforce regardless of membership, found that non-members shared in that benefit in any event.

This appears to confine the ASLEF decision to circumstances in which a union has the right to bargain for all employees, thus rendering the general principle of union freedom subject to the scope of the individual bargaining arrangements in any given circumstance. The Court was silent on other circumstances: membership in the absence of recognition, derecognition, limited bargaining rights, multiple recognition and representation by employee elected representatives etc.

The Court also seems to have taken a somewhat simplistic view of the benefits of union membership and the protections it affords. The fact that Mr Lee was covered by bargaining arrangements despite his non-membership overlooks a significant part of the role of trade unions. The benefits of membership are not confined to bargaining terms, but extend to representation in disciplinary and grievance matters, advice, support, the right to take part in the life of the union, decisions on industrial action and beyond. Mr Lee was deprived, if expelled, of these opportunities. If Mr Lee were to face disciplinary action as the result of his actions, or perhaps dismissal as we saw in the case of Mr Redfearn, he would receive no representation. Again the Court is silent on how and why this does not constitute a detriment.

These are important issues given that the decision is likely to result in the amendment of s174. The Government has, in response, consulted on possible amendments to s174 as a result. Two potential amendments were proposed; the first removing reference to political party membership or activities, the second a more limited reform to permit exclusion on political grounds only where those were incompatible with the rules or objects of the union. Complete repeal, which was the position adopted by several of the unions consulted, was not proposed.

Unions are undoubtedly being targeted by the far right in a way perhaps not originally envisaged when s174 was drafted. As Hendy and Ewing^²² have noted, the original drafting of s174 took place in a different political climate. It was enacted by a Conservative Government as part of a raft of legislation aimed at ending the closed shop and in particular the danger of loss of livelihood where a member was excluded or expelled as a result of being (or not being) a member of a mainstream political party. They point out that the climate has changed. The closed shop is a thing of the past and the current challenge is not from mainstream political affiliation but from the right.

Many in the union movement have suggested that, in the face of the changes since enactment. Unions are not, as the ECHR has acknowledged politically neutral nor should they be required to be. But the question here is whether they should be permitted to police the political views of their members.

The political debate has shifted away from the mainstream to concerns over the politically extreme. But again the risk of hard cases making bad law arises. An outcome simply designed to meet the unique challenge from the far right but which are lacking in general principle have the potential, should the context change, to exclude others. Surely what is required is a democratic and open challenge to the views of members with whom we may disagree.

And for unions the ground is dangerous. In order to accept the role of policing members’ views they must accept that those excluded suffer no detriment. In doing so they will have to accept the argument that membership has few if any benefits. That cannot be right.

So, whilst the right result may have been reached in terms of Mr Lee, given the lack of closed shop and bargaining arrangement, the absence of disciplinary action against him, what of an BNP member in other circumstances. Should his (or her) political views put him beyond the reach of union protection if he is disciplined, dismissed or outside collective bargaining arrangements. As the carefully couched decision of the Court in ASLEF suggests, the balance between freedom of association and freedom of expression is not easily drawn.

Both cases raise interesting questions of law and both provide significant challenges. Hard cases can and do make bad law. The fact that the views of the BNP are, to many of us, unacceptable should not mean that we define the scope of the law in such a way as to exclude them from protection, allowing in due course for others to be excluded.

2 See sections 1(1) of the Race Relations Act 1976 (as amended). The government in its recent Green Paper on harmonisation of discrimination law has indicated that it does not see the need for harmonisation in this particular regard. It merely states that, although discrimination by association on the grounds of race (along with other grounds) is rightly covered in existing legislation, the law of sex discrimination is aimed at protecting people in relation to their actual sex, not their perceived sex or because they associate with someone of a particular sex. They see no 'practical benefit' in extending the law. (See the Green Paper at pp 35 and 36.) This suggests that the government does not envisage situations where discrimination by association with regard to sex is of significance, rather than because it sees any powerful arguments in principle for treating it differently to race discrimination. Indeed, apart from the possibly of gender reassignment (which clearly has no racial equivalent) and possibly a different degree of social impact (which would be highly questionable) there seems to be no difference between the two that could justify different treatment based on principle.

3 For present purposes, there is no material difference between the definition of direct discrimination in the Race Relations Act 1968 and that in the Race Relations Act 1976. The 1968 Act did not, however, provide protection against less favourable treatment "on racial grounds", but rather was limited to treatment "on the ground of colour" see section 1(1). The White Paper preceding the RRA 1976 made it clear that that Act and the SDA 1975 were intended to be the same. It stated that

"[e]xcept for good reason, the two statutes and the procedures for their administration and enforcement will be framed in similar terms. It is hoped in this way to ensure wider public understanding of the meaning and effect of the legislation in both fields." (Racial Discrimination 1975 Cmnd 6234 at para.50)

6 [1979] 1 WLR 125. Had Ms Zarczynska’s complaint arisen after 2 July 1999, section 103A Employment Rights Act 1996 would have provided her with an alternative remedy. That section declares a dismissal automatically unfair where the principal reason for the dismissal was that the employee made a protected disclosure. In that case it was found as a fact that Ms Zarczynska had insisted to her employer that the instruction was not reasonable or lawful. There is no length of service requirement to pursue such an unfair dismissal claim – see section 108(3)(ff) Employment Rights Act 1996.

8 The case law has further been considered by the EAT in Carter v Ahsan [2004] UKEAT/0907/03 per Silber J, although the analysis was doubted, obiter, by a majority of the Court of Appeal when the case was appealed: [2005] EWCA Civ 990.

10 Swinton-Thomas LJ, who agreed, did not consider it helpful to try to ascertain the intention of the draftsman of the Act, or the intention of Parliament, because he thought it unlikely that the circumstances of the case would have been considered by Parliament. He found it more helpful to focus on the intention underlying the Act and the words used.

14 See River Wear Comrs v Adamson (1877) 2 App Cas 743 (HL) at 763, per Lord Blackburn "from the imperfection of language, it is impossible to know what [Parliament's] intention is without inquiring further, and seeing what the circumstances were with reference to which the words were used, and what was the object, appearing from those circumstances, which the person using them had in view". See further Francis Bennion, Statutory Interpretation (fourth edition), Part XX - Purposive Construction, pp809 onwards.

15 Coleman v. Attridge Law Case C-303/06 is a reference by an employment tribunal directly to the ECJ and is the first time that discrimination by association has been judicially considered in a context other than race. Mrs Coleman, who is not disabled herself, is claiming that her dismissal was on the grounds that she was the carer for her disabled son, and she therefore brought her claim under the Disability Discrimination Act 1995 (DDA 1995). If she succeeds it will be a highly significant decision due to the expansion of the contexts of discrimination by association but also because of the financial importance and numerical incidence of further possible claims. The EU Framework Directive provides an overarching justification for all discrimination legislation and provides for the inclusion of discrimination by association within its definition of discrimination. Article 2.1 states that the principle of equal treatment shall mean that there shall be no direct or indirect discrimination whatsoever 'on any of the grounds' referred to in Article 1, namely religion or belief, disability, age or sexual orientation regarding 'employment and occupation'. It is therefore arguable that any failure to include discrimination by association within domestic legislation will involve a breach of the Directive.

17 See Igen v Wong [2005] IRLR 258 (CA) at para 37 per Peter Gibson LJ where it was doubted whether dicta in Nagarajan v London Regional Transport [1999] IRLR 572 (HL) were in substance different from the 'no discrimination whatsoever' formula.

18 For an analysis as to whether Mr. Redfearn's case engaged Convention rights under Article 10, protecting the pursuit of activities of a political nature, see Leto Cariolou, The Right Not to be Offended by Members of the British National Party: An Analysis of Serco Ltd v Redfearn in the Light of the European Convention of Human Rights [2006] ILJ 415. As at the date of writing, Mr Redfearn's appeal to the European Court of Human Rights is pending.

19 The omission of prospective association is deliberate: whilst it is possible to conceive of cases where an individual is treated less favourably because of a future association with an identifiable comparator, in practice most cases of prospective association are likely to be an intended association with individuals of a particular racial group with the consequence that no specific comparison is available. Indeed, the discriminatory instruction cases could be explained as an intention on the worker to associate in the future with individuals of a particular racial group, expressed as a refusal to comply with a discriminatory instruction.

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