In the recent case of GMB v Henderson the EAT considered whether an employee’s ‘left wing democratic socialism’ constituted a philosophical belief and whether the employer’s treatment of the employee amounted to harassment.
Keith Henderson was employed as a regional organiser in the General Municipal Boilermakers (GMB) trade union. His job involved undertaking political work as part of the region’s political efforts on behalf of the Labour party.
He was dismissed from his job for gross misconduct following a series of incidents. One of the incidents involved Mr Henderson being tasked with mounting a picket line at the House of Commons that tried to stop Labour MPs crossing. Mr Henderson also wrote a “day of action” letter and publicised the picket line in the media stating that GMB members were “low-paid workers demanding their right to a decent pension”.
This led to Labour leader, Ed Miliband, and his office contacting the GMB General Secretary, Paul Kenny, indicating their displeasure. In a phone call from Mr Kenny, Mr Henderson was told that the article he had written was “over the top” and “too left wing” and ordered him to allow all Labour MPs to cross the picket line.
Following his subsequent dismissal Mr Henderson brought a claim for unfair dismissal and discrimination and harassment on the grounds of religion or belief (i.e. his left-wing democratic socialist beliefs). Whilst the Tribunal held he had not been unfairly dismissed, Mr Henderson succeeded in his claim of discrimination on the basis that he had been treated less favourably because of his strong political beliefs. The Tribunal stated that the actions by the GMB related to Mr Henderson’s protected beliefs and had the purpose of creating an intimidating, hostile or humiliating environment for him to work in.
On appeal the decision that Mr. Henderson’s dismissal was fair was upheld by the Employment Appeal Tribunal (EAT), however the employer’s appeal in respect of Mr. Henderson’s discrimination and harassment claim was allowed. The EAT stated that the incidents relied upon by Mr. Henderson were not sufficiently serious to constitute harassment (two of the incidents were deemed to be trivial), and although isolated acts may be regarded as harassment, they must reach a degree of seriousness before doing so.
The EAT usefully stated that a philosophical belief is on a par with religious belief and should be given no less protection. All qualifying beliefs have equal protection.
One –off comments or isolated acts may not constitute discrimination, the acts must reach a degree of seriousness before doing so. In this case, although Mr Henderson was shouted at by Mr. Kenny and told he was ‘too left wing’, it was not serious enough to amount to harassment. However, this should not be seen as a “get out” card and employers should be wary of allowing such banter becoming common in the workplace
Finally an employer’s knowledge/awareness of the employee’s beliefs will be central to establishing a claim. Again, ignorance is not always the best defence.
Employers would be wise to remind employees of the need to be careful about the use of language in the workplace, particularly in the run up to a general election !