Harassment and Political Belief
In the case Henderson v GMB, the UK's Employment Appeal Tribunal (EAT) had to consider whether the claimant had been subjected to harassment related to his beliefs. The claimant in the case was a trade union official who had been accused, during a heated conversation, of conduct that was “too left wing”.
Henderson was employed by the GMB trade union, most recently as a regional organising officer. He was dismissed as a result of various actions on his part that were found to constitute gross misconduct and which led to his employer considering him to be unmanageable. Henderson claimed unfair dismissal, and direct discrimination and harassment on the grounds of religion or belief.
The employment tribunal decided he had been dismissed fairly. However, Henderson succeeded in his claims of direct discrimination and harassment on grounds of religion or belief. The tribunal accepted that he was treated adversely because of his left-wing democratic socialist beliefs and that this constituted a belief for the purposes of the Equality Act 2010.
The trade union argued in its defence against the discrimination claim that Henderson’s beliefs were not the substantial reason for his dismissal. The employment tribunal did not accept this argument. But the tribunal did accept that various incidents of unwanted conduct by the GMB towards Henderson had occurred and that they related to his protected beliefs - these were found to have had the purpose of creating an intimidating, hostile or humiliating environment for him. These included his being shouted at for being too left wing in relation to a picketing issue, being threatened with disciplinary action if he did not retract a statement that he had an extremely onerous workload and his being refused a short relocation from his usual base.
Employment Appeal Tribunal
Both parties appealed against the employment tribunal’s findings. While the employee’s appeal against the unfair dismissal finding failed, the employer’s appeals against the employment tribunal’s findings of unlawful direct discrimination and harassment succeeded.
The EAT considered that there were no findings of fact or evidential basis to support the tribunal’s decision, not least as it had made no findings about the attitudes to his beliefs of those involved in dismissing Henderson. And the incidents in question were not sufficiently serious to constitute harassment – indeed two were considered by the EAT to be trivial. As the EAT put it, although isolated acts may be regarded as harassment, they must reach a degree of seriousness before doing so.
The EAT made several useful points about cases of this sort. First, there is no basis for suggesting that a philosophical belief should be given less protection than a religious belief. Secondly, the awareness of the alleged discriminators will be central to establishing whether a claim is well founded – the employment tribunal must avoid what was described by the EAT as the trap of conflating the reason for the alleged discriminator’s actions with the reasons for the claimant’s conduct. Finally, context and seriousness must be carefully considered when deciding harassment cases, especially where the complaint involves a single incident.
Membership of a political party may not be enough in itself to attract the protection of the religion and belief provisions of the Equality Act – a more deep-seated philosophical belief is required – so in this case Henderson based his claim on his left-wing democratic socialist views. That said, employers should also not forget that under section 108(4) of the Employment Rights Act 1996, employees can claim unfair dismissal where the reason for dismissal is the employee's political opinion or affiliation. Importantly, the requirement for the employee to have two years' service does not apply to such a claim.
The forthcoming general election may increase the risk of disputes arising between employees about politics. This case serves as a useful reminder not only of how tribunals should address their analysis of the issues in these sorts of legal proceedings but also the need for employers to ensure that their expectations of employees’ conduct are clearly and carefully managed in relation to this potentially sensitive and most contentious of topics.
This update was originally published online by People Management on 23 March 2015.