Page last updated at 11:04 GMT, Friday, 21 November 2008

Tread carefully with extreme views

By Audrey Williams
Head of discrimination law, Eversheds

The publication of details about BNP members may prompt some employers to take action, particularly in companies where membership may cause particular sensitivities given the nature of the business or its customer or client base.

BNP members campaigning in Burnley
BNP members' details have been published online

However, employment law specialists at Eversheds are advising employers to tread carefully to avoid falling foul of a discrimination or unfair dismissal claim.

Audrey Williams, head of discrimination law at Eversheds law firm, explains the issues.

All employees have the right not to be unfairly dismissed once they have been in a job for a year or more.

That means employers must have a substantial reason for sacking longer serving staff.

Dismissing someone simply because they are a member of the BNP is very difficult to justify.

An employer will be on firmer ground if it can show that membership of certain organisations is incompatible with the individual's job or has a negative impact on colleagues, customers and the local community, and that there is a clear policy spelling this out.

It is possible, too, that organisations with an ethos based on strong ideological views on social or political issues might be able to justify their actions.

Where the employer simply finds their employee's political affiliations repugnant, however, it will be much harder to persuade a tribunal that dismissal is reasonable.

Staff who have been employed for less than a year are not as well protected as longer-serving colleagues. That does not mean, however, that taking action is risk-free.

Unlawful discrimination

The Employment Appeal Tribunal has said that if an employer takes action against members of the BNP because they consider the organisation to be racist, this will be unlawful race discrimination unless similar action would be taken against members of racist organisations that are non-white.

The message for employers is to be consistent in their approach.

The irony that a law intended as a shield against racism might assist its detractors was tempered, however, in the high-profile case of Redfearn v Serco Ltd (2006).

Mr Redfearn was a driver for a local authority, whose passengers were mostly of Asian origin.

He was dismissed after being elected as a local councillor for the BNP. The Court of Appeal said that this was not a case of discrimination on racial grounds.

Where race discrimination protection ends, however, legislation prohibiting discrimination on grounds of belief could still trip employers up.

New protection

One of the early cases under the regulations was brought by a Mr Baggs, whose application for a job with a medical practice was rejected because of his active membership of the BNP.

His claim failed because, at that time, the law only protected holders of philosophical beliefs that were 'similar' to religious beliefs. Last year, however, this restriction was dropped.

Although the government has denied that the law's reach has been extended, some lawyers disagree.

The President of the Employment Appeal Tribunal, Mr Justice Elias, has expressed the view that the belief of some racist or fascist organisations that man was not born equal, is indeed a philosophical view and that there are circumstances when discriminating against someone in the BNP could be unlawful.

It may still be possible to justify dismissal in some cases, but employers should think carefully before taking action.

The opinions expressed are those of the author and are not held by the BBC unless specifically stated. The material is for general information only and does not constitute investment, tax, legal or other form of advice. You should not rely on this information to make (or refrain from making) any decisions. Always obtain independent, professional advice for your own particular situation.

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