EAT Unfair Dismissal – RELIGION OR BELIEF DISCRIMINATION – HARASSMENT
1. The Employment Tribunal found that the Claimant was fairly dismissed for gross misconduct but also found that he 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. The Tribunal held that the protected beliefs formed a substantial part of the reasoning for his dismissal and were accordingly an effective cause of it. The Tribunal also found that three incidents of unwanted conduct by the GMB related to his protected beliefs were found proved, all of which had the purpose of creating an intimidating, hostile or humiliating environment for him.
2. The appeal against the finding of unfair dismissal was dismissed. Although there appears to be a tension between the conclusion that the Claimant’s dismissal was both fair and unlawfully 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, there is no reason in principle why such a conclusion cannot stand. The two statutory tests are different and the mere fact of these two findings does not, without more, indicate any error of law.
3. The findings of unlawful direct discrimination and harassment could not stand. There were no findings of fact or evidential basis to support them. The Tribunal made unsupported legal or factual assumptions about disputed questions of less favourable treatment on protected belief grounds. There was no analysis of the factors relevant to those conclusions and the evidential basis for reaching the conclusions was nowhere identified. There was no material from which adverse inferences could properly be made and no evidential basis for the Tribunal’s findings in this regard.
4. Further, of the three harassment incidents relied on, two were obviously trivial. The third was an ‘incident’ and not an ‘environment’. Although isolated acts may be regarded as harassment, they must reach a degree of seriousness before doing so. To conclude that the third incident was an act of unlawful harassment is to trivialise the language of the statute.
5. The Claimant’s assertions (there being nothing more than this by way of evidence identified as available but in respect of which findings were not made) that his protected beliefs were at least a significant part of the reason for the impugned treatment were not supported by any evidence and amounted to no more than unsupported speculation. It would not be open to a tribunal properly directing itself as to the law to reach any other conclusion. There is only one outcome on the evidence and the findings made by the Tribunal in this case. The Respondent’s appeal on these grounds would accordingly be upheld, and findings of no unlawful discrimination or harassment substituted.
Simler J DBE
[2015] UKEAT 0073 – 14 – 1303, [2015] IRLR 451
Bailii
England and Wales
Cited by:
Appeal from – Henderson v The General Municipal and Boilermakers Union CA 11-Oct-2016
The claimant appealed against rejection of his claims for unfair dismissal and otherwise. The union appealed against a finding in favour of the claim for discrimination (and otherwise) on account of his religion or belief, namely ‘left wing . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 29 December 2021; Ref: scu.544861
