A recent decision of the Employment Appeal Tribunal has stressed that trivial acts, even if related to a protected characteristic, will not constitute unlawful harassment. The case ofHenderson v GMB is a useful reminder that the Equality Act is not intended to provide a remedy for every perceived slight that an individual might encounter in the course of their working day. Although an isolated incident may be regarded as harassment, it must reach a degree of seriousness before it can properly be categorised as such.

Background

The Claimant is an advocate of left-wing democratic socialism, who was employed by the GMB union as a Regional Organising Officer.  In November 2011 staff at the House of Commons who were GMB members voted to take strike action to include a picket line at the House of Commons; the strike vote included a provision that Labour MPs should not cross the picket line.  The Claimant was tasked by his employer with organising the picket line and publicised the picket to the media, stating that Labour MPs were expected not to cross the picket line.  This was picked up by the media and during Prime Minister’s Questions in the House of Commons the Labour Leader, Ed Miliband, was given a difficult time, being asked where he stood on Labour MPs crossing the picket line. Shortly after that, the GMB’s General Secretary, Paul Kenny, was contacted by somebody in Mr Miliband’s office expressing their displeasure at the publicity that had been courted by the Claimant about Labour MPs not crossing the picket line, as this had been used by Mr Cameron to suggest that Mr Miliband was being controlled by the unions.  Consequently Mr Kenny telephoned the Claimant and shouted at him, saying that a letter he had written was over the top and too left-wing, and ordered the claimant to allow all Labour MPs to cross the picket line. 

Tribunal proceedings

The Claimant subsequently brought an Employment Tribunal claim alleging, amongst other things, that Mr Kenny’s behaviour constituted harassment related to his beliefs. That claim was initially successful, the Tribunal finding that Mr Kenny’s conduct was related to the Claimant’s left-wing democratic socialist beliefs (which it found were philosophical beliefs under the Equality Act 2010) and the purpose of that conduct was to create an intimidating, hostile or humiliating environment for the Claimant. 

On appeal, the decision that the belief in left-wing democratic socialism was protected was not challenged.  However, the Tribunal’s decision that was overturned, the Employment Appeal Tribunal ruling that to conclude that the telephone conversation between Mr Kenny and the Claimant was an act of unlawful harassment is to trivialise the language of the Equality Act.  That language outlaws conduct related to a protected characteristic that has the purpose or effect of creating a creating an intimidating, hostile or humiliating environment for a worker.  The Court of Appeal has previously said ‘Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment’ Land Registry v Grant [2011] ICR 1390.  Bearing that in mind, the EAT ruled that the event involving Mr Kenny was trivial: it was an ‘incident’ rather than an ‘environment’ and, therefore, it could not constitute unlawful harassment under the Equality Act.  Moreover, the EAT also ruled that the Tribunal had not adequately explained how it reached its decision that Mr Kenny’s conduct was related to the Claimant’s beliefs rather than the high profile political difficulties the Claimant’s actions were perceived to have caused to Ed Miliband.

Comment

We see many claims in which workers have seemingly over-reacted to what appear, on an objective assessment, to be trivial and fleeting incidents and this case will be a useful aid to facing down such challenges.  It is important to bear in mind, however, that what matters is the effect of the incidents, not simply the aims of the perpetrator, and conduct that might have little impact on one person could take on a different complexion, with more lasting effects, when an individual’s protected characteristics are taken into account. 

Henderson v GMB, EAT, 13 March 2015