In Henderson v GMB the Employment Appeal Tribunal was asked to consider a claim alleging direct discrimination and harassment relating to Mr Henderson’s “left-wing democratic socialist beliefs”.
An employment tribunal had found that Mr Henderson had been fairly dismissed but had suffered unlawful direct discrimination and harassment on the basis of the protected characteristic of his “left-wing democratic socialist beliefs” which were held to be protected beliefs. There had been incidents of unwanted conduct by the GMB relating to his beliefs that had the purpose of creating an intimidating, hostile or humiliating environment for him.
Mr Henderson worked as a Regional Organiser for the GMB in North London. his job included undertaking political work as part of the region’s political efforts on behalf of the Labour Party. The tribunal found that left-wing democratic socialism included:
(i) a belief in establishing “socialism through democratic processes and [propagating] its ideals within the context of a democratic political system through a working-class industrial and political movement”;
(ii) a belief in ‘workers’ control, that is a term meaning “participation in the management of factories and other commercial enterprises by the people who work there. Crossing workers’ picket lines contradicts this aim because it undermines workers’ ability to control their workplaces.
Mr Henderson was regarded as an extremely effective and committed employee. the first incident occurred when he was asked to organise a picket line at the House of Commons in November 2011. He did so and publicised it to the media stating that Labour MPs should not cross the picket line. The story was picked up by Sky News and other press outlets.
The matter was raised in PMQs on 30 November 2011 and Ed Miliband was given a hard time about it. Someone at Mr Miliband’s office complained about the promotion of the picket line by Mr Henderson as a result of which the GMB general Secretary Paul Kenny called Mr Henderson and shouted at him, saying that his actions were “over the top” and “too left wing”. Mr Henderson maintained that following this incident he experienced difficulties with his managers. He maintained that he was given onerous duties in an attempt to make him resign. In April 2012 he became ill with stress.
Mr Henderson saw an occupational health adviser and referred to his 50-80 hour week. the tribunal found that this was a “very substantial exaggeration of the true position”. In the meantime Mr Henderson was encountering problems with his local Labour Party and, for reasons that were unclear, had been suspended. An email emerged in which Mr Henderson had referred to his extremely onerous workload. Mr Henderson was asked to withdraw these words from his correspondence with the local Party but refused to do so.
Following further problems an investigatory process was commenced. Mr Henderson also raised a grievance and, after it was found that he had a case to answer, raised a second grievance. A disciplinary hearing took place in November 2012 and he was dismissed. the tribunal rejected the claim for unfair dismissal. However it found that a substantial part of the reasoning behind dismissing him was his philosophical belief which was therefore an effective cause of his dismissal. Further there was unwanted conduct related to his protected belief.
On appeal the EAT supported the decision that the claim for unfair dismissal should fail. As for protected beliefs Mrs Justice Simler made clear that there is no ranking of philosophical beliefs – all are entitled to the same level of protection. Although the belief itself was a protected one, without findings of fact or an evidential basis to support them the findings of unlawful discrimination and harassment could not stand. The tribunal had made assumptions in this regard that it was not entitled to. Further two of the incidents were trivial and insufficient to constitute unlawful harassment.