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Political beliefs and crossing the (picket) line

We are now just 48 days from the election and I am sure over the coming weeks there are going to be several watercooler moments in workplaces around the country, sparking debate amongst workers regarding their political views and beliefs.  Debate is of course to be encouraged but headaches can arise for employers if matters are taken further and an individuals' conduct is called into question.  A recent decision of the EAT in GMB v Henderson provides some helpful points in situations whereby there are blurred lines between an employee's misconduct and discrimination on the basis of political beliefs.

In this case, Mr Henderson worked as a Regional Organising Officer for the GMB.  He is an advocate of 'left-wing democratic socialism'.  Separate from his role at the GMB (and unrelated to his work at the GMB) the Claimant was suspended from the Labour Party.  He was subsequently dismissed by the GMB for gross misconduct at the end of 2012 and brought claims for unfair dismissal and discrimination on the basis of his political beliefs. 

The basis for Mr Henderson's dismissal was two-fold – challenging the authority of his line management and making serious allegations regarding collusion between the GMB and the Labour Party regarding his suspension from the Labour Party.  At first instance, the Tribunal held that Mr Henderson had been fairly dismissed but concluded that he had suffered unlawful direct discrimination and harassment on the basis of his 'left-wing democratic socialist beliefs' (which the Tribunal accepted was a protected belief for the purposes of the Equality Act).  In coming to its conclusion the Tribunal was satisfied that that the protected beliefs formed a substantial part of the reasoning for Mr Henderson's dismissal and were accordingly an effective cause of it. 

The Tribunal also found that three incidents of unwanted conduct by the GMB related to the protected beliefs and had the purpose of creating an intimidating, hostile or humiliating environment for him.  One of the acts found to amount to harassment related to an incident when Mr Henderson was tasked with organising a picket line at the House of Commons that tried to stop Labour MPs crossing.   Mr Henderson publicised the picket line in the media stating that Labour MPs were expected not to cross the picket line.  This led to Ed Milliband facing difficult questions during Prime Minister's Questions.  Mr Milliband’s office contacted the General Secretary of the GMB, Paul Kenny to express their 'displeasure at the publicity'.  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.  Mr Henderson contended that from this point onwards he was subject to different treatment.  The Tribunal awarded Mr Henderson compensation of £7,000 for injury to feelings.

The EAT formed a different view on the discrimination issues and upheld the employer's appeal.  It made the following points:

-  The law does not accord special protection to one category of belief (ie religion) and less protection for another (ie philosophical).  Philosophical beliefs may be just as fundamental to an individual as are religious beliefs and should be protected equally.  

-  It is important for a Tribunal not to confuse a respondent's reasons for treating the Claimant as it did with the reasons for acting as he did.  In this case there was an absence of evidence that Mr Henderson’s political beliefs was a feature in the dismissal decision making process (rather it was his conduct in refusing to accept reasonable management instructions etc).

-  The EAT was satisfied that of the three incidents relied on to support a claim for  harassment, two were merely trivial and the evidence did not support the assertion they were linked to Mr Henderson's political views.  In relation to the picketing incident described above, the EAT was satisfied that this did have a direct link to the Claimant's protected beliefs.  However, in order to establish whether the test for harassment was satisfied, the context of Mr Kenny's conduct (ie the political difficulties the Claimant's actions were perceived to have caused Ed Miliband) needed to be considered, which the Tribunal failed to do. 

-  The EAT confirmed that the picketing issue was an 'incident' and did not create an 'environment'.  In addition, although isolated acts can be regarded as harassment, they must reach a 'degree of seriousness' before doing so.         

-  An interesting point raised, but left undecided, was whether there is a distinction between treatment because of a person’s belief and treatment because of their manifestation of that belief.

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