Henderson v The General Municipal and Boilermakers Union
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Briggs |
| Judgment Date | 11 October 2016 |
| Neutral Citation | [2016] EWCA Civ 1049 |
| Docket Number | A2/2015/1271 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 October 2016 |
[2016] EWCA Civ 1049
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Underhill
Lord Justice Briggs
A2/2015/1271
Mr S Rahman (instructed by Direct Access) appeared on behalf of the Appellant
Mr E Williams and Ms S Fraser Butlin (instructed by Leigh Day) appeared on behalf of the Respondent
The appellant was employed by the respondent trade union as a regional organiser until his dismissal on 7 December 2012. He brought proceedings in the Employment Tribunal for unfair dismissal; wrongful dismissal; direct discrimination on the grounds of religion or belief, the belief in question being defined as "left wing democratic socialism"; harassment on the same ground; victimisation; and unjustified union discipline. Those claims were heard over four days in July 2013 by an Employment Tribunal sitting at Watford, chaired by Employment Judge Mahoney, together with claims against the Union by a different claimant which shared the same factual background (the appellant was for that reason referred to by the Tribunal as "the second claimant"). By a judgment with written reasons sent to the parties on 30 September 2013, most of the appellant's claims were dismissed, but his claims of discrimination and harassment were upheld, at least in part. At a subsequent remedy hearing he was awarded £7,000 by way of compensation for injury to feelings in respect of those claims.
Both parties appealed to the Employment Appeal Tribunal. The appellant appealed against the dismissal of the claims upon which he had failed and also against the quantum of the remedy award. The union appealed against the finding of liability in relation to the discrimination and harassment claims. By a judgment handed down on 13 March 2015, Simler J dismissed the appellant's liability appeal and allowed the union's appeal in respect of the claims upon which the appellant had succeeded, and dismissed those claims. In those circumstances the remedy judgment fell away.
The appellant appeals to this court only against the dismissal of his claims of discrimination and harassment. As regards them, he acknowledges that the Employment Tribunal's reasoning was inadequate, as the Employment Appeal Tribunal had held, but he contends that the only proper course was for the claims to be remitted to the Employment Tribunal. The scope of the appeal is accordingly fairly narrow.
The appellant has been represented before us this morning by Mr Sami Rahman of counsel, and the union by Mr Ed Williams, leading Ms Sarah Fraser Butlin. Mr Rahman appeared in the Employment Appeal Tribunal, where he was led by Mr Nick DeMarco, but neither of them had appeared in the Employment Tribunal, where the appellant was represented by Mr Oxton of counsel. Mr Williams appeared in both tribunals, though Ms Fraser Butlin only in the Employment Appeal Tribunal.
By way of preliminary, I should set out the relevant statutory provisions.
Section 13(1) of the Equality Act 2010 defines direct discrimination as follows:
"A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."
It is trite law that that definition requires, at least in a case of the kind with which we are concerned, a consideration of the mental processes of the putative discriminator.
Harassment is defined in section 26(1) of the same Act as follows:
"A person (A) harasses another (B) if—
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of—
(i) violating B's dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B."
I will use the shorthand of a "hostile environment" for head (ii) which is otherwise rather a mouthful. Again, it will be clear that both the element of purpose under head (b) and, at least in a case of this kind, the question of whether the conduct complained of "is related to" the protected characteristic, will require a consideration of the mental processes of the putative harasser.
The well known burden of proof provisions at section 136 of the 2010 Act also apply to both kinds of claim, but I need not set them out here.
The appellant's claim of direct discrimination was based on his dismissal. As for the acts of harassment, he initially complained of ten such acts, carefully set out in the list of issues prepared at a case management hearing. Only three of those were upheld by the Employment Tribunal. The factual background to those three, and the events leading up to the dismissal, can be sufficiently summarised as follows.
By way of preliminary, it was common ground that the appellant held beliefs which he described as, in the phrase I have already quoted, "left wing democratic socialism", of which he gave a rather fuller analysis, which was accepted by the tribunal.
The story starts with an episode in November 2011, when the appellant was asked to organise a picket line outside the House of Commons in support of strike action by members of the union working in the Palace of Westminster. In the publicity that he put out in connection with the action the appellant said that Labour MPs were expected not to cross the picket line. This created an awkwardness for the then Labour leader, Mr Miliband, whose office complained to the General Secretary of the Union, Mr (now Sir) Paul Kenny. Mr Kenny telephoned the appellant, shouted at him and told him that the material which he had written was over the top and "too left wing". He told him to ensure that Labour MPs were allowed to cross the picket line. The appellant responded that he was only doing his job in carrying out his instructions from his members. I will refer to this as "the picketing episode". What Mr Kenny said to the appellant on the telephone is the first act of harassment complained of.
It was the appellant's case that following the picketing incident, the atmosphere in the office became more hostile towards him and that he began to be overloaded with work. The Employment Tribunal explicitly rejected that case. It did however find that over the following months the appellant began to become increasingly exhausted and stressed, principally because he was becoming more active in his local Labour Party and was hoping to be elected as a county councillor. It is clear that there were serious problems between him and others in his local party, for reasons into which the Tribunal did not go, and at some point in this period he was suspended from membership. Those problems, coupled with the ordinary pressure of work, and an unusually long daily commute, made him ill, and on 7 May 2012 he went off work suffering from stress. He returned to work on a phased basis in early July.
On 23 July 2012 the appellant went to see his line manager, Mr Warr, to seek his help in relation to the problems which he was encountering with his local Labour Party. In that connection he showed Mr Warr emails passing between himself and the local Labour Party director, Mr Alan Olive. In one of them he told Mr Olive that as a result of "an extremely onerous workload" he would not be able to return Mr Olive's telephone calls. Mr Warr was angered by that email when he came upon it after the meeting, because he thought that it reflected badly on the Union as the appellant's employer, especially as he was in fact on a phased return and accordingly did not have a full workload. He called the appellant back to his room and told him that he should write to Mr Olive retracting that statement. There was then a row, in the course of which Mr Warr threatened the appellant with disciplinary action. The appellant left the room, slamming the door behind him. I will refer to this as "the Alan Olive incident". Mr Warr's threat of disciplinary action is the second act of harassment complained of.
Three days after the Alan Olive incident, on 26 July 2012 the appellant asked Mr Hayes, the Regional Secretary, who was Mr Warr's manager, if during the two weeks of the Olympics he could work at the Union's Chelmsford office because his commute to work, which was already lengthy, took him through Stratford and there would accordingly be serious delays. Mr Hayes refused the request, saying that there were no office computer facilities or support staff at Chelmsford. He said instead that the appellant could work at the office at Gants Hill, but that was a much more difficult journey for the appellant. As to this, the Tribunal said, at paragraph 18.4 of its reasons:
"The Tribunal was unimpressed with Mr Hayes's reasoning for not locating the second claimant at Chelmsford. From the evidence before the Tribunal, it was quite clear that there were office and computer facilities sufficient for the second claimant's needs available at Chelmsford and there was no rational reason for him not to agree that the claimant should be based at Chelmsford for the two to three week period of the Olympic games."
I will refer to this as "the relocation incident". Mr Hayes's refusal is the third act of harassment which the Employment Tribunal found.
It was the appellant's case in relation to all three incidents, and indeed in relation to the others in respect of which his claims were dismissed, that the Union's conduct towards him was engaged in with the purpose of creating a hostile environment – that is, he did not rely on the "effect" element in paragraph (b)...
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