The media have been voyeuristically poring over the leaked BNP membership lists, trying to find something or someone interesting enough to write about. Even the Financial Times, where the letters BNP usually refer to a French bank, has this handy little tool to help you find out how many far-rightists there are in your area.
All this talk of mass sackings of BNP members is, of course, complete nonsense. As Mishcon de Reya’s Beth Leng says, the change in the definition of discrimination on the grounds of belief in the Equality Act 2006 will probably protect BNP members in most jobs from dismissal:
In April 2007, the definition of ‘religion’ or ‘belief’ changed. The law previously said ‘any religious belief or similar philosophical belief’; ‘or similar’ has now been removed. At the time, there was no intention to widen the ambit of the regulation. However, it’s as yet untested. I’m sure that far right groups like the BNP will test the law to see if the tribunal will have any sympathy to extend the definition.
The wording of the law seems to imply that all belief is now protected in the same way that religious belief has been for the past five years. She continues:
If you’ve got someone who has been actively voicing discriminatory values and beliefs in the workplace, they will be in breach of your policies. If you’re relying on a breach of those policies, provided you dismiss the employee reasonably, you’ll be as safe as you can be.
If you automatically dismiss everyone who is a member of the BNP, you’re going to face a significant risk.
For now, at least, employers can only dismiss people for what they do, not for what they think. If someone has been a BNP member and kept quiet about it at work, any dismissal would probably be unfair.
My knowledge of data protection laws is hazy but surely for employers to take disciplinary action on the basis of illegally obtained and unverified data would also be very unwise. At the moment, all we know is that someone has posted a list of people on the web, claiming that they are BNP members. In all likelihood, most of them are but there have been suggestions that some people’s names were added to the list after it was published online.
What a great way to nobble workplace rivals. Set up your own blog with the BNP membership database on it then just add the names of people you don’t like. An unlikley scenario, perhaps, but employers should nevertheless be wary of taking the list at face value. (Note to self: Find the list and check you’re not on it.)
But, even without dismissals, there could still be some interesting legal cases coming out of this. What if other employees decide they don’t want to work with BNP members? Could black, Muslim or gay workers decide that the presence of a BNP member creates an intimidating racist, Islamophobic or homophobic environment? If these employees raised grievances the employer could be left between a rock and a hard place. Dismissing the BNP member would run the risk of an unfair dismissal claim on the grounds of illegal discrimination. Doing nothing could lead to claims of harassment from other workers.
There are parallels here with the Lilian Ladele case. Islington council’s dismissal of Ms Ladele was ruled illegal by an employment tribunal. However, had the council not sacked her, they would have faced grievances and possible legal action from gay employees on the grounds that they allowed a homophobic environment to persist. Those employing BNP members could find themselves in a similar no win situation.
BNP leader Nick Griffin has claimed that “one of the country’s top employment law firms” has offered his members free legal representation. As he doesn’t mention the firm, this is most likely just an attempt to boost his members’ morale. Any law firm giving free advice to the BNP would probably lose much of its public sector work as a result.
But it’s not just the BNP that will need legal advice. Organisations employing BNP members, especially where they are working alongside people from minority groups, could find themselves with some tough employee relations issues.
The government’s recent equality legislation has created a set of irreconcilable workplace rights. Handling any conflict between BNP members in a way that avoids legal or industrial action will require a high degree of skill and patience. Managers facing these dilemmas will need all the help they can get.