I was recently asked to prepare a short summary of some of the most recent reported employment tribunal and appeal cases that have been heard under either the Race Relations (Amendment) Act (2000) or the Race Relations Act (1976).  The thing which struck me most about the list was the relative paucity of reported cases. Searching just for the RRAA it is striking that the last three years have seen no cases exploring the monitoring or impact assessment duties of the Act. These of course are the anticipatory employer duties that were supposed to make the real difference. Employers, it was felt, who did seriously engage in impact assessment would be significantly likely to engage in the acts of individual discrimination that fuel RRA cases.

Why haven't there been any RRAA cases on the general or specific duties? It could be because so much good advice has been provided to the sectors, it could be that employers have acted speedily and fully on their duties - more realistically, I think the answer lies with the main enforcement body the CRE, which has the powers to demand formal investigation of employers or sectors that fail to implement the RRAA, and where these orders are ignored, to bring a case to court.

The CRE to the best of my knowledge hasn't begun even a single investigation of any employer in education. Therefore the chances of the Commission going to the next stage - bringing a court action - are low. Of course there is still a power for individuals or trade unions to bring actions - as judicial reviews - under the Act. But although many people have talked about this, and if the right target was found, a big cross-union campaign could well be launched, this prospect remains distant.

If there have been no cases looking at the general or specific duties, this does not mean that there have been no RRAA cases at all: at the most recent count there had been some 29 reported RRAA cases since the law came into effect in 2002. The two largest groups concern (i) police officers who since the RRAA have been empowered to bring race claims against other officers and (ii) refugees, migrants and asylum seekers complaining about immigration and nationality decisions. There have also been individual cases concerning Travellers, or the findings of the electoral Boundary Committee - all interesting but probably not that useful for trade unionists or other people who read this site.

How about the more familiar RRA cases - where the complaint is really not about group but individual rights?

The following are five of the most significant cases: I don't think they add up to much of a coherent picture - so much as gains for unions and the left in some areas and losses in others.

1) Henry v UNISON (2003)

In this case a union member brought a claim of discrimination against their union for what they saw as a failure to provide equivalent high quality advice to black as to white members: arguing its defence, UNISON brought six white witnesses to what turned out to be an all-white ET panel. The complainant suggested that his own black witnesses should have been called. They were not. The claimant also suggested that a new panel should have been convened. This argument too was unsuccessful. Although the claimant failed in this case, I think it is useful to cite the case if only to remind union advisors that we have a duty to provide good quality advice and representation to all members. If we discriminate in the advice we give, we may be subject to claims which may potentially succeed.

2) Fearon v Chief Constable of Derbyshire (2004)

The applicant in this case had failed to go through a full formal complaint against their employer before going to tribunal. In explanation, the applicant argued that he had made a series of complaints during the course of his appointment, some 47 altogether, which the employer had refused to investigate. The ET addressed the complaints individually and found against the employee on all of them. The EAT took a different approaching, arguing that this was a case of victimisation. The employer's refusal to consider the complaints fully had been a sign of the employer's discrimination against the applicant. The EAT ruled that the ET had erred in treating cases individually on one-by-one basis when the correct method would have been to treat them in the whole. The complaints, and the employer's inaction, had not been separate but had constituted one continuing act of discrimination.

The case, of course, was found under the old disputes procedures.

3) Barton v Investec (2005). This was an EAT decision concerning sex discrimination, although I will explain its relevance in just a second. It concerned a female share trader who had received a £300,000 annual bonus in comparison to a male colleague who received £1 million. She alleged discrimination and brought an equal pay case. The employer refused to answer her questionnaire, and also failed to provide any general information about staff salaries to the ET. He did however argue that the male colleague needed higher pay, because the company was afraid he might be poached by a headhunter. The claim was unsuccessful at the ET, but the EAT found for the claimant, arguing that the tribunal had made a series of errors, of which one of the chief one was to fail to give any consideration to the employer's failure to answer the pre-case questionnaire. The correct procedure in a discrimination case is for the claimant to show sufficient primary facts for it to be demonstrated that discrimination may be present. If that is done, and the failure to answer a questionnaire may be sufficient, the duty switches to the employer who now has to disprove discrimination.

4) Dresdner v Adebayo (2004): applied Barton to race

5) The last case to consider is one before the Court of Appeal just at the moment, and about which I've written elsewhere: Redfearn v Serco (2005/6). Redfearn was according to the courts a 'perfectly satisfactory employee', who had been working for a privatised transport company in West Yorkshire for less than a year, when they decided to stand for the British National Party in the council elections in Bradford, during which they were elected. Redfearn was supposed to be working on a route driving disabled Asian pensioners. But as the case began he was taken on to different duties: driving mail to post office, on a route that took him out of contact with black or Asian people.

UNISON sent a letter complaining about Redfearn's employment, and his employer dismissed him on 3 grounds: (i) the risk to health and safety if the buses were attacked, (ii) because his continuing employment would give anxiety to vulnerable passengers and carers and so undermine business, and the fear (iii) that it would jeopardise the reputation of the West YTS if incorrectly associated with racist views of BNP

The Employment Tribunal found that this was a fair dismissal, the Employment Appeals Tribunal found the reverse. They made a number of points, first they simply doubted that the dismissal had been to do with health and safety. The EAT argued, probably rightly, that Redfearn had been sacked because he was perceived to be a racist.

This raised a question, which the EAT found surprisingly difficult to answer: is it lawful for a company to dismiss someone on the grounds of their racism?

The question hadn't come to the courts before, and when something like it had, the nearest situation was a rather different one: imagine that A (a white person) instructs B (another white person) to harass black employees or customers. B refuses and A dismisses them. In a number of cases, including Race Relations Board v Applin and Showboat Entertainment v Owens, the EAT or the court of appeal had previously found that the white employee who refuses to carry out a racist instruction was being dismissed 'on racial grounds'.

The EAT argued that the same protection applied to a white racist dismissed for their racism: their conduct had something to do with race, it was the direct cause, and any dismissal which was directly about race was (the same phrase) 'on racial grounds' and therefore unlawful. Faced with the suggestion that their decision was absurd, the court insisted that that they were merely following the words of the statute. 'If some step is required ... that can, and should, be considered by Parliament'

The Court of Appeal is currently considering Redfearn v Serco. I think we can say two things: first, like all cases, it turned on a mixture of fact and law. Redfearn was able to present himself as an injured party: not personally racist, never invited to leave the BNP, not engaged in duties any longer which took him into contact with black staff, the victim of a political conspiracy against his views.

When the unions approached the employers to suggest his dismissal, I think they made a mistake in not thinking through some simple justice points: they didn't collect evidence of his behaviour or comments, they made a collective complaint, they failed to find black employees to attach to the complaint.

Redfearn would not have come so far, if only the union had actually thought more politically and intelligently about securing a misconduct dismissal.

Second, on the matter of law: I sat in at the Court of Appeal and it was clear that the judges understood the principle at the heart of the case: if it is allowed to stand, then any racist accused of any act of racism will be allowed to say 'if you dismiss me it is unlawful direct discrimination: I have the protection of the law'.

I hope Redfearn v Serco will be overturned and quickly.