With only 47 days to go until the general election we report on The General, Municipal & Boilermakers Union v Henderson UKEAT/0073/14, a case that concerned an employee's political views and what constitutes an appropriate manifestation of those views in the workplace.
Mr Henderson was employed as a regional organiser by The General, Municipal & Boilermakers Union (the GMB) until he was dismissed on 7 December 2012. His job included undertaking political work as part of the GMB's political efforts on behalf of the Labour Party. He was an advocate of left-wing democratic socialism.
In November 2011, staff at the House of Commons who were GMB members voted to take strike action, to include a picket line. Mr Henderson was asked to organise the picket line. He publicised it to the media and stated that Labour MPs were expected not to cross the picket line. This was raised in the House of Commons during Prime Minister's Questions and the Labour leader, Ed Miliband, was asked where he stood on Labour MPs crossing the picket line. The general secretary of the GMB was contacted afterward by someone in Mr Miliband's office, who expressed displeasure at the publicity that had been courted by Mr Henderson, as this had been used by Mr Cameron to suggest that Mr Miliband was being controlled by the unions. The general secretary called Mr Henderson and shouted at him, stating that the Day of Action letter he had written was "over the top" and was too left-wing and ordered him to allow all Labour MPs to cross the picket line.
Mr Henderson alleged that, from then on, he experienced difficulties with his managers, including being required to undertake onerous duties as a deliberate attempt to force him to resign and receiving unfounded complaints about his work on an almost daily basis.
In early 2012 Mr Henderson became more politically active in his local Labour Party and had ambitions to become a councillor. In May, he went off sick with stress and he returned to work in July on a phased basis. Following his return, he sent an email to his local party in which he referred to his "extremely onerous workload". His manager saw the email and demanded that Mr Henderson retract it. Mr Henderson refused and the exchange became heated, with the manager threatening disciplinary action and Mr Henderson leaving his office and slamming the door. Mr Henderson asked to be based at the GMB's Chelmsford office for the duration of the Olympics but this was rejected.
Mr Henderson told the GMB that he intended to raise a grievance about these issues. The GMB then carried out an investigation into his conduct, which found there were seven matters warranting a case to answer. A disciplinary hearing took place and Mr Henderson was dismissed for gross misconduct. Mr Henderson's appeal was dismissed and he brought various claims in the employment tribunal.
Employment tribunal decision
The tribunal held that Mr Henderson had been fairly dismissed for gross misconduct and the GMB had been entitled to form the view that he had become unmanageable. It therefore dismissed his claim for unfair dismissal, as well as his claims for wrongful dismissal, victimisation and unjustified union discipline. However, the tribunal found that he had suffered unlawful direct discrimination and harassment on the basis of the protected characteristic of his left-wing democratic socialist beliefs, for which he was awarded compensation of £7,000 for injury to feelings. Both parties appealed to the EAT.
Mr Henderson's appeal was dismissed. Although there appeared to be a tension between the conclusion that his dismissal was both fair and discriminatory, provided a tribunal makes findings of fact that are supported by the evidence, correctly applies the relevant statutory test and reaches reasoned conclusions by reference to the facts found, the EAT stated that there is no reason in principle why such a conclusion cannot stand. The two statutory tests are different and the fact of two different findings does not indicate any error of law.
The GMB's appeal was upheld, with the EAT holding that the findings of unlawful direct discrimination and harassment could not stand. There was an absence of evidence that Mr Henderson's political beliefs operated on the minds of the dismissal decision-makers. They may have been unsympathetic but this was more likely to be connected with Mr Henderson's conduct than his beliefs.
Of the three harassment incidents relied on, two were obviously trivial and the third was an 'incident' rather than an 'environment'. The EAT stated that context and seriousness must be carefully considered, in order to avoid trivial acts being caught by the concept of harassment, particularly where there is a single incident.
The EAT also rejected any suggestion that a lower level of protection would be afforded to philosophical belief than religious belief. It stated that all qualifying beliefs are equally protected and that philosophical beliefs may be just as fundamental or integral to a person's individuality and daily life as religious beliefs.
The clarification given by the EAT is helpful, particularly in relation to harassment and the fact that all beliefs are equal. It also confirmed the tribunal's finding that a political belief can constitute a philosophical belief.
Interestingly, the judgment in this case was handed down the day after the Equality and Human Rights Commission published a report on religion or belief in the workplace. One of its key findings was that many respondents voiced concerns over finding the right balance between the freedom to express religious views and the rights of others to be free from discrimination or harassment. It seems that the conflict between different beliefs is a real issue and will, no doubt, lead to further cases.