How does a council protect itself from equalities claims when it has BNP councillors? Mark Greenburgh explains Most people in local government react with horror at the thought of serving a council made up of British National Party councillors. But recent election results have left many in just that situation. So how should a council move forward? We are all familiar with the legal requirement in the Race Relations Amendment Act for councils to eliminate unlawful racial discrimination and promote equality and good relations between persons of different racial groups. As employers, councils must ensure they protect their staff from harassment and discrimination, both direct and indirectly. And while there is a statutory defence available by showing that an employer has taken every reasonable precaution to prevent discrimination, how practicable is it to force BNP councillors to attend appropriate training, abide by codes of conduct, or not make inflammatory statements? Yet a council must give reasonable access to papers, premises and assistance to members in the discharge of their public duties. How then can these conflicting duties be reconciled? Individual councillors may not – in law – have the power to hire and fire, but they have the ability to destroy the relationship of trust and confidence between the council and its employees. This can lead to claims for constructive unfair dismissal. In the case of Moores v Bude-Stratton Town Council (1999), the tribunal held that a council employee who resigned after being subjected to verbal abuse by a councillor was entitled to claim constructive unfair dismissal against the council. In this case, the tribunal stressed that all councils owed their employees a duty to provide a ‘working environment which is reasonably tolerable to all employees’. In addition to claims for unfair dismissal, the case of Burton v De Vere Hotels (1996) also highlights the potential exposure of councils to discrimination claims of a vicarious nature. In that case the tribunal held that if an employer ‘causes or permits racial harassment to occur’ then it is liable for that harassment. Although the De Vere Hotels case deals with racial discrimination, the same principles would – in general – extend to other forms discrimination, including on grounds of religion or belief. Of course, all members are obliged to sign up to the code of conduct. This requires that members should promote equality by not discriminating unlawfully against any person, and by treating people with respect, regardless of their race, age, religion, gender, sexual orientation or disability. On the other hand, the Court of Appeal has just decided – in the case of Serco v Redfearn – that it was not unlawful to dismiss an employee – in this case, a bus driver – who was also BNP councillor. Here, the very fact of his political views raised a health and safety issue, because of the possible reaction by members of the public. There have been a number of relevant cases already dealt with by the Standards Board. A BNP councillor from Burnley BC was disqualified for three years for breaches of the code, as was Cllr Norman Thompson of Restormel BC, when he breached the code by making offensive statements. But the courts have cast some doubt on the efficacy of this framework. In the case of Peterborough councillor Neville Sanders, Mr Justice Wilkie said that where a member of a local authority was giving expression to political opinions – whether offensive or not – or expressed political opinions in an offensive way, article 10 of the European Convention on Human Rights might well be engaged to protect the politician from any sanction by the Standards Board. It is clear that however unpalatable their views might be, an elected councillor must be afforded the benefit of the doubt to express those opinions. Councils should review their equal opportunities policies and procedures, the confidential reporting code – for whistleblowers – and the role of scrutiny and audit as an essential part of good governance and practice. Particular attention needs to be paid to the new statutory grievance procedures for staff, ensuring that the three-step process of investigating, meeting and providing a route of appeal is followed. Indeed, the best defence to claims in the employment tribunal is to show that the council has not only offered but has insisted its councillors undertake suitable equalities training. Communication of an unequivocal commitment to both the statutory obligations and policies, and procedures that underpin them is essential, particularly to staff and service-users. w Mark Greenburgh is partner and head of local government and employment solicitor Sameera Anwar, Wragge & Co LLP
