Monday, 1 December 2008

The Lawyers Begin To Scent Blood In The Water

Finally the lawyers are waking up to the fact that big bucks payouts are available to BNP members.

Note that the only organisations that have an UNLAWFUL ban on the BNP are the Police and the HMP Prison Service.

The army has stated in in its Part One orders last week that it is lawful to be a BNP member and for armed services personel to attend BNP meeting even in uniform.

Republishing BNP data may not be lawful

Author: Warwick Ashford Posted: 12:36 28 Nov 2008

The British National Party data leak that exposed thousands of members' details raises important personal data issues, says international law firm Eversheds.

Simply because information is publicly available online, does not make it lawful to use any personal data involved, said Paula Barrett, partner in the IT group at Eversheds.

"Care must be taken by employers and other third-parties seeking to make use of such details to ensure that such processing does not inadvertently place them in breach of data protection legislation," she said.

Data protection rights are not conditional upon beliefs of the individual involved and the publication of personal data creates potential criminal and civil liabilities for anyone involved, said Barrett.

"Even where membership of a lawful political party causes concern, particularly in a democracy, those party members have the same rights as members of any other political party to have their personal data protected," added Barrett.

BNP members have expressed concerns about potential backlashes and job losses after being exposed as members of the far-right party.

It is illegal for armed forces personnel and police officers to be members of a political party and other are in roles where membership of the BNP may be frowned upon.

Barret said employers considering dismissal or disciplinary action as a result of these details must also ensure they comply with employment laws otherwise they may face action for unfair dismissal and/or discrimination on the grounds of race or belief.


Innes Clark: Taking prejudices to work is fraught with potential for pitfall

« Previous « PreviousNext » Next »View GalleryPublished Date: 01 December 2008
DO WE take our prejudices to work with us? Or can we, as British National Party leader Nick Griffin suggested, "leave them at the door?"

The recent disclosure on a website of a membership list of the BNP (which purportedly included police officers, medical professionals, soldiers and teachers) and the resulting media attention has raised an important issue for employers.

In a coADVERTISEMENTnflict between the beliefs or prejudices of an employer and their employee, can an employer discipline or dismiss the employee?

Can they refuse employment to someone holding beliefs with which they disagree?

The law in the UK on this issue is complex. Employers must remember that there are limited grounds upon which a fair dismissal can take place. In addition, protection is afforded to employees with relevant "religious or philosophical beliefs".

There have been many tribunal cases where employers have dismissed employees for actions taken outwith the workplace that have been considered to adversely affect their ability to do their job.

Membership of the BNP has, in itself, created a particular string of cases. In 2006, a bus driver was dismissed when he stood as a BNP candidate.

His employer was concerned that his public association with the party posed a health and safety risk to users of its service, employees and to the driver himself. The fact that he worked in a mainly Asian community was a key factor.

The claimant argued unsuccessfully that the decision to dismiss him amounted to discrimination on racial grounds.

In a subsequent case, an applicant for a job was rejected due to his active membership of the BNP. His argument that he had been discriminated against was thrown out by the tribunal that ruled the membership of the party did not bring the claimant within the terms of 2003 Regulations that protected people from discrimination on the ground of religion or "similar philosophical belief".

Both of these cases preceded a change of the law in April 2007 when the word "similar" was dropped from the definition of the prohibited discrimination.

This, it could be argued, widens the potential extent of the protections afforded by the Regulations as it no longer limits the requirement of the philosophical outlook to be similar in definition to a "religious belief".

Despite government statements to the contrary, this appears to open the field to arguments that political views could now be protected as a philosophical belief. A tribunal decision interpreting the amended legislation may be forthcoming if anyone on the published list now loses their job as a result of their membership of the BNP.

Certain jobs do have policies that prohibit membership of certain organisations including the BNP.

These include police officers and members of the prison service who justify their prohibition on the grounds that membership of specific organisations is entirely incompatible with working in those roles.

Such rules do not apply to members of other professions such as doctors or nurses although both are bound by codes of practice that would prohibit membership if it was contrary to the proper performance of the role.

The European Court of Human Rights has indicated that a union could not dismiss a member even if they belonged to a political organisation that had beliefs or aims contrary to the union's rules or objectives. However, the Employment Act 2008, which received Royal Assent last month, reverses the position.

While membership of a specific fringe political party has created the latest flurry of headlines, the fact that employment law provides protection to employees who have beliefs (even those contrary to those of their employer) remains.

An employer who dismisses an employee must overcome the hurdle of having to establish that the dismissal was for a fair reason.

Unless they can link the belief to an inability or direct conflict with performing the job, the dismissal could well be unfair.

Overall, those who can argue successfully that the relevant element of their private life comes within the definition of "religion or philosophical belief" will have additional protections. But those whose beliefs cannot be described as within that ambit still have the right not to be unfairly dismissed assuming they have over a year's service.

Employers need to be careful as to how far they can allow their own personal views to colour their judgment about employment and recruitment.

Where do they draw the line? Could membership of golf clubs that do not permit female members, be a ground for action? It seems unlikely, no matter what an employer's view is on the rights or wrongs of such golf clubs' policies.

However, in such subjective and sensitive matters the views and perceptions of the public evolve. Employers need to keep this in mind when dealing with this very topical issue.

• Innes Clark is a partner in Morton Fraser's employment team and a member of the Chartered Institute of Personnel and Development.

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