The recent EAT judgment in Henderson v GMB is a must-read for practitioners seeking to advance or respond to claims of discrimination on the grounds of philosophical belief.
Keith Henderson, a GMB Regional organiser was dismissed on 7 December 2012. At first instance the Tribunal held that Mr Henderson had been fairly dismissed for gross misconduct (being unmanageable and making unsupported allegations of collusion between the GMB and the Labour party), but that he had suffered direct discrimination and harassment on the basis of his “left-wing democratic socialist beliefs” for which he was awarded compensation for injury to feelings.
One of the acts found to amount to harassment took place following Mr Henderson being tasked with organising a picket line at the House of Commons that tried to stop Labour MPs crossing. Mr Henderson wrote a “day of action” letter and publicised the picket line in the media, which led to Ed Milliband facing some difficult questions from the Prime Minister. Mr Milliband’s office then raised this with the General Secretary of the GMB, Paul Kenny. Mr Kenny was then found to have called Mr Henderson and shouted at him stating that his “letter was over the top” and “too left wing" and that no MPs should be prevented from crossing the picket line (these findings of fact were made without the benefit of Mr Kenny giving evidence at the ET).
The Tribunal found that whilst the principal reason for dismissal was conduct, and thus fair; Mr Henderson’s political beliefs played a substantial part in the dismissal so as to render the dismissal discriminatory.
Both parties appealed, and in a long and detailed judgment Simler J dismissed Mr Henderson’s appeals and upheld that of GMB substituting the ET’s decision with hers that there was no discrimination or harassment on the facts. The GMB were represented by Ed Williams and Sarah Fraser Butlin of Cloisters.
In relation to the finding that the dismissal was both fair and discriminatory, Simler J found that there was an absence of evidence that Mr Henderson’s political beliefs operated on the minds of the dismissal decision-makers. She held that whilst it may be that the dismissal officers were unsympathetic, this was more likely because of Mr Henderson’s conduct, than his beliefs:
“The Tribunal did not address the distinction which the respondent sought to draw before it, between the claimant’s protected beliefs and his conduct arising from it. In the absence of any analysis or explanation of its conclusion at paragraph 53, there can be no confidence that it avoided the trap identified in Ladele of confusing the respondent's reasons for treating the claimant as it did with his reasons for acting as he did. As Elias P explained in that case, these are not the same thing at all.”
Simler J also made interesting observations in relation to the use of comparators. Highlighting the difficulty of constructing the correct hypothetical comparator, she rejected as ‘meaningless’ the Tribunal’s use of a comparator who had committed no misconduct whatsoever.
In relation to the individual claims of harassment that had been upheld by the Tribunal, including the “too left wing” comment, the EAT upheld the appeal. Simler J emphasised the importance of taking account of context in assessing whether an act is sufficiently serious so as to amount to unlawful harassment. In relation to the picketing phone call she held:
“This was an ‘incident’ and not an ‘environment’. Moreover, although isolated acts may be regarded as harassment, they must reach a degree of seriousness before doing so. True it is that the claimant was shouted at and that his letter was described as over the top and too left-wing, but this did not prevent him from answering back to Paul Kenny (as the Tribunal found at paragraph 17.5), and nor did it prevent him from contacting Paul Kenny subsequently, for support in relation to his Labour Party difficulties. To conclude that the telephone conversation between Paul Kenny and the claimant in November 2011 was an act of unlawful harassment is to trivialise the language of the statute.”
An interesting point raised by counsel for the GMB, but left undecided by Simler J, was whether a distinction can be drawn between treatment because of a person’s belief and treatment because of their manifestation of that belief.
Finally, Simler J expressly rejected any suggestion that different levels of protection would be afforded to philosophical belief over religious belief:
The law does not accord special protection for one category of belief and less protection for another. All qualifying beliefs are equally protected. Philosophical beliefs may be just as fundamental or integral to a person’s individuality and daily life as are religious beliefs.