Henderson v The General Municipal and Boilermakers Union

LORD JUSTICE UNDERHILL: 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:

Harassment is defined in section 26(1) of the same Act as follows:

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:

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) of section 26(1), and he put his case on head (ii) rather than head (i).

On 31 July 2012 Mr Warr complained to Mr Hayes about a number of aspects of the appellant's conduct, including the Alan Olive incident, and his allegedly negative attitude to Mr Hayes's refusal of his request to work at Chelmsford during the period of the Olympics. A disciplinary investigation ensued, but the appellant declined to take any part in it. In due course, a disciplinary hearing took place before the Regional Secretary of the Union's North East region, Mr Brennan, on 30 November 2012. There were seven charges. One of them related to the Alan Olive incident, but the most serious were concerned with other matters.

Mr Brennan eventually decided that the appellant should be dismissed on the basis of two of the charges: (1) that he had challenged the authority of line management and the Regional Secretary - this appears to relate in part to the Alan Olive incident but also to his refusal to participate in the disciplinary investigation; and (2) that he had made serious allegations of collusion between the Union and the Labour Party in connection with his dispute with his local party. It appears that what led Mr Brennan to treat these matters as warranting dismissal was that the appellant did not accept that he had done anything wrong and said that he would not carry out any management interaction that he regarded as unreasonable, and also that he was not prepared to withdraw the allegations of collusion. The Employment Tribunal said this at paragraph 45 of its reasons:

There was an appeal conducted by Mr Phillips, the Regional Secretary of the Union's Wales and South West Region, but the appeal was rejected.

I turn to the Employment Tribunal's reasoning on the discrimination and harassment claims. It made fairly full findings of fact about each of the three harassment episodes and the sequence of events leading to the dismissal, and it is from them that I have drawn the narrative above. However, its reasons for finding that those facts constituted unlawful harassment, or, in the case of the appellant's dismissal, direct discrimination, are much shorter. Taking the dismissal first, all that it said was this, at paragraph 53:

“Further, the Tribunal concludes that the second claimant has proved primary facts from which a tribunal could properly and fairly conclude that there has been a difference in treatment between the claimant and the hypothetical comparator because of the claimant's philosophical belief. Although we have considered that the principal reason for the claimant's dismissal was his conduct, we also are of the view that the claimant has established to our satisfaction that a substantial part of the reasoning behind dismissing the claimant was because of his philosophical belief and was an effective cause of his dismissal. The burden of proof having shifted to the respondent, we are not satisfied that the respondent's explanation has failed to establish to the satisfaction of the tribunal that the second claimant's philosophical belief was not a substantial reason for his dismissal.”

As regards the harassment claim, at paragraph 56 the Tribunal said this:

“The unwanted conduct was in the Tribunal's view related to the second claimant's protected characteristic and did have the purpose of creating an intimidating, hostile or humiliating environment for the second claimant. In coming to this conclusion the Tribunal has considered the claimant's perception, the other circumstances of the case and considers it was reasonable for the conduct to have that effect."

The Employment Appeal Tribunal allowed the Union's appeal against those findings on the basis that the reasoning in those two paragraphs was wholly inadequate, and it dismissed the discrimination and harassment claims, rather than remitting them to the Employment Tribunal, because it held that on the basis of the findings of fact made, and the evidence adduced, it would not have been open to the Tribunal to find that the relevant actors in each case that is, Mr Kenny, Mr Warr and Mr Hayes respectively in the case of the harassment episodes, and Mr Brennan and Mr Phillips in respect of the dismissal – had the relevant motivation or purpose. I need to set out Simler J's reasons in a little detail.

I take first the discrimination claim. At paragraph 78 of her judgment, Simler J sets out the Union's criticisms of the Employment Tribunal's reasoning as follows:

“The respondent criticises the Tribunal's conclusion that a substantial part of the reason for the claimant's dismissal was his philosophical belief, on the following grounds:

(i)

The factual findings made by the Tribunal relevant to the claimant's dismissal and in particular to why the dismissing and appeal officers dismissed him, make no reference whatsoever to his protected beliefs and the findings fully explain on a non-discriminatory basis why he was dismissed.

(ii)

the Tribunal made no finding that either the dismissing officer or the appeals officer knew that the claimant was a left wing democratic socialist or that the fact that he was a left wing democratic socialist was operating on their minds at the time of dismissal.

(iii)

the Tribunal made no attempt to identify specific factual findings from which an inference of discrimination that called for an explanation could be drawn. There was instead, merely a bare assertion that the claimant had proved primary facts that called for an explanation. In fact there was no prima facie case that needed to be rebutted.

These points all ultimately boil down to one fundamental, critical question: what is the evidential basis and what are the primary findings of fact that underpin and support the conclusions expressed by the Tribunal at paragraph 53?

Given that the claimant's case was that his dismissal was for unlawfully discriminatory reasons, the starting point for the Tribunal was to identify the individuals responsible for it and in determining the reason for dismissal, to identify the set of facts which operated in their minds. There is no dispute that the two relevant individuals for these purposes are Mr Brennan as dismissing officer and Mr Phillips as appeals officer. The Tribunal made no findings of fact relating to the attitudes of Mr Brennan and Mr Phillips to the claimant's protected beliefs. The Tribunal made no findings that their approach to the claimant was unusual or untoward or for any other reason called for some explanation. On the face of the Tribunal's findings there is nothing in the circumstances surrounding the investigation and disciplinary process to suggest that the claimant had proved facts from which a prima facie case that his dismissal was because of his protected beliefs could be inferred. Rather on the face of the Tribunal's findings the claimant's misconduct appears to provide a full and non-discriminatory explanation for his treatment."

Mr DeMarco's response to that criticism was summarised at paragraph 79 of the judgment. It was essentially that it was wrong to focus only on what the Tribunal had said at paragraph 53, and that if one looked at the totality of the Employment Tribunal's factual findings it was clear that the sequence of events which led to the appellant's dismissal began with the picketing incident in which Mr Kenny, being the General Secretary of the Union, explicitly criticised the appellant for being too left wing. It was reasonable to infer, and, he submitted, the Employment Tribunal evidently did infer, that Mr Kenny's views expressed on that occasion influenced everything that happened thereafter. There was from that point onwards "a campaign to undermine and ultimately dismiss [the appellant] orchestrated by Paul Kenny because of his political beliefs". This had been the way that the appellant put his case throughout.

Simler J rejected that argument. She said at paragraphs 80 to 81:

Simler J also accepted Mr Williams' submission that there was no evidence, and there were no grounds for inferring, that either Mr Brennan or Mr Phillips even knew of the appellant's protected beliefs. Her reasoning on that point appears at paragraphs 82 to 87 of her judgment, but I need not set them out here. She concluded, at paragraph 88:

I turn to the harassment case. At paragraph 91 of her judgment Simler J sets out the Union's grounds of challenge to paragraph 56 of the Tribunal's reasons as follows:

“The respondent appeals on the following grounds:

(i)

the Tribunal made no findings of fact that the behaviour constituting harassment was related to the claimant's beliefs (ground 6);

(ii)

the Tribunal 'erred in law' by analysing in a 'cursory and superficial way' whether the facts of Mr Hayes amounted to harassment; and whether Mr Kenny's comments were related to the claimant's belief, and by not asking themselves whether such comments were or were not likely to cause offence (ground 7);

(iii)

the Tribunal failed to consider whether the claimant's harassers had knowledge of his beliefs (ground 8)."

At paragraph 92 she records Mr Williams's submissions that:

“What is altogether lacking from paragraph 56 is any analysis or assessment of why the conduct occurred and any identification of the evidential basis for the conclusions reached. Instead an unsupported inference appears to be drawn from the fact that conduct was unwanted and the claimant held or was expressing protected beliefs.”

She then proceeds to consider the three episodes, though she does not take them in chronological order. I will take them in the same order as she did.

As regards the Alan Olive episode, Simler J says at paragraph 93:

“... in my judgment there is nothing in the Alan Olive incident to relate what happened or what was said in any way to the claimant's protected beliefs, let alone to a significant extent. Nor is there any finding of fact that the purpose Mr Warr had in asking the claimant to retract the 'onerous workload' comment was to create an intimidating, hostile or humiliating environment for the claimant. On the contrary, the findings demonstrate that he reasonably believed the claimant's statement in the email to be false and that it could reflect badly on the respondent, and wished to correct this position. The Tribunal made no finding that Mr Warr behaved unusually or in a manner that was unpleasant or over the top. Again, on the contrary, its findings suggest a reasonable and appropriate approach.”

As regards the relocation episode, she says, at paragraph 94:

“So far as concerns the incident involving Mr Hayes, again there is nothing in the Tribunal's factual findings to establish that Mr Hayes's behaviour was attributable at least to a significant extent to the claimant's protected beliefs. The Tribunal's finding that Mr Hayes behaved unreasonably and its rejection of his explanation cannot afford a proper basis for an inference that his behaviour had anything to do with the claimant's protected beliefs, still less without any clear explanation and analysis. Moreover, such an inference is contradicted by the Tribunal's own findings at paragraphs 17.6 and 17.7 effectively rejecting the claimant's assertion that there was a hostile environment in the office after the picketing incident created by Mr Warr and Mr Hayes, and that this incident occurred many months later and without anything untoward happening in the intervening period.”

As Simler J acknowledged at paragraph 95 of her judgment, the picketing incident is somewhat different because there was in that case a direct link between the rebuke of which the appellant complains and his protected beliefs, because Mr Kenny said in terms that he was being "too left wing". However, she held that the Tribunal's reasoning was still entirely inadequate to support its conclusion, because it failed to consider whether two essential elements of the statutory definition had been established: first, whether Mr Kenny's comment did by itself establish that his conduct was "related to" the appellant's democratic socialist beliefs as opposed to being simply an expression of his irritation at the awkward situation that had been created between him and Mr Miliband; and, second, whether in any event his purpose was to create an adverse environment for the appellant. In relation to the first of those elements, Simler J referred to paragraphs 69 to 70 of the judgment of His Honour Judge Richardson in Nazir v Asim [2010] UKEAT/0332/09 [2010] ICR 1225, emphasising the importance of context: that passage was quoted with approval by Langstaff P in Warby v Wunda Group Plc [2012] UKEAT 0434/11. In relation to the second element, she emphasised that what had to be shown was that Mr Kenny's purpose was (and at this point the shorthand must be abandoned) to create "an intimidating, hostile, degrading, humiliating or offensive environment" for the appellant, and she quoted the observations of Elias LJ in Land Registry v Grant [2011] EWCA Civ 769 [2011] ICR 1390 to the effect that:

On this appeal, the appellant accepts that the Employment Tribunal's reasoning was deficient in the ways identified by Simler J. As I have already trailed, his case -- and it is in fact a single point, albeit that several permutations of it are pleaded in the grounds of appeal -- is that having found the deficiencies that she did in the Employment Tribunal's reasoning, the only correct course for the Employment Appeal Tribunal was to remit the case to the Employment Tribunal. Mr Rahman clarified before us that he was not seeking a rehearing in the Employment Tribunal, but rather a direction to the Tribunal that it give proper reasons for its decision, as in a case of the "Burns/Barke" type, albeit that that would be unusual as a disposal of a full appeal. He submitted that it was not open to the Employment Appeal Tribunal to fill the gaps left by the Tribunal's reasoning.

The relevant test in cases of this kind was confirmed by this court in Jafri v Lincoln College [2014] EWCA Civ 449 [2014] ICR 920, followed, albeit with some reluctance, in Burrell v Micheldever Tyre Services Ltd [2014] EWCA Civ 716 [2014] ICR 935. At paragraph 23 of his judgment in Jafri, Laws LJ quoted with approval the judgment of Sir John Donaldson MR in O'Kelly v Trust House Forte plc [1983] ICR 748, where he said at page 764:

“The Appeal Tribunal can correct errors of law and substitute its own decision insofar as the Employment Tribunal must, but for the error of law, have reached such a decision. But if it is an open question how the Employment Tribunal would have decided the matter if it had directed itself correctly, the Appeal Tribunal can only remit the case for further consideration.”

In my judgment, it is plain that that is the approach which Simler J took in this case. As regards both the discrimination and the harassment claims, she came to the explicit conclusion that there was no basis upon which the Employment Tribunal could properly have found the complaints proved. She did so partly on the basis of the Employment Tribunal's own findings of fact, which, as she demonstrates carefully and with particularity, appear to contradict central elements in the appellant's case, but partly also on the absence of any evidence supporting an inference that any of the relevant actors had the necessary motivation or purpose. I have already set out the relevant passages from her judgment, and I will not recapitulate them here. The essential point is that she did not purport to decide any disputed or disputable point of primary fact, or conduct an evaluation of evidence of the kind that ought to have been carried out by the Employment Tribunal. Instead she held that on the facts found and the evidence submitted the appellant's case was bound to fail. Accordingly, I have no doubt that she directed herself correctly.

The task for Mr Rahman on this appeal must therefore be to show that although Simler J purported to take the correct approach her conclusion was one which was not in fact open to her on the facts found by the Employment Tribunal and the evidence adduced before it. That is not, however, an exercise which he has felt able to perform. He has not made any submissions directed to the details of Simler J's reasoning or the particular findings of fact upon which she relied. Nor has he sought to rely on any evidence which is said to have been before the Employment Tribunal but not referred to by it, and which could have justified the necessary findings as to the mental processes of the various actors. We were not indeed shown – nor, it seems, was the Employment Appeal Tribunal – any of the contemporary documents that were before the Employment Tribunal, nor any notes of the oral evidence, nor, subject to one exception, any of the witness statements. There was included in the bundle for this appeal the appellant's own witness statement, but Mr Rahman accepted that that was not produced in the Employment Appeal Tribunal: it cannot therefore be relied on now, in any event it does not appear that it contains any specific material that would have allowed the Employment Tribunal to draw the necessary inferences. Instead, Mr Rahman confined himself to the general proposition that it should be assumed that the Employment Tribunal had appreciated the need to make findings as to the mental processes of the various actors and had relied on aspects of the oral evidence, albeit tacitly, in doing so. All that was necessary was to ask it to specify what that evidence was and what was its reasoning in relation to it. There had been, he said, a lot of oral evidence, and presumably there was material in it upon which the Tribunal had relied, though he was not in a position to say what.

With respect, that is not a permissible approach. Where a party is seeking on appeal to uphold a conclusion for which no evidential support can be identified in the Tribunal's reasons, it must be for that party to draw the appellate tribunal's attention to the evidence which he or she says would in fact have supported the conclusion in question. That should not normally be an onerous task, since they will presumably have relied on that very evidence in their original submissions to the Tribunal. But in any event it is not appropriate simply to assume the existence of such evidence in the way suggested by Mr Rahman: it is, alas, not unknown for employment tribunals to reach conclusions for which there is no evidential support, most typically because they have misdirected themselves as to the elements that have to be proved.

In the result, Mr Rahman has not established any basis on which Simler J's careful reasoning can be impugned, and I would dismiss this appeal.

LORD JUSTICE BRIGGS: I agree.