General Municipal and Boilermakers Union v Henderson

A dismissal may be fair under the unfair-dismissal legislation while also being discriminatory. The statutory tests ask different questions. A discriminatory reason need only be more than trivial, whereas unfair dismissal concerns the reason or principal reason and the employer’s conduct.

However, a tribunal must identify evidence and findings capable of supporting an inference that protected belief influenced the relevant decision-makers. Unsupported assertions, unreasonable treatment alone, or a flawed hypothetical-comparator exercise cannot establish direct discrimination. Harassment must be related to the protected characteristic, assessed in its context, and sufficiently serious. Equality law does not convert trivial workplace incidents into unlawful harassment.

The Employment Tribunal dismissed Mr Henderson’s claims for unfair and wrongful dismissal. It found that he had been fairly summarily dismissed for gross misconduct after refusing reasonable management instructions and maintaining unsubstantiated allegations of collusion.

The Tribunal nevertheless upheld claims of direct discrimination and harassment because of his protected left-wing democratic socialist beliefs. It awarded compensation for injury to feelings but no financial loss.

Mr Henderson appealed against the findings of fair dismissal and the remedy decision. The GMB appealed against the findings of discrimination and harassment, and separately challenged the extension of time. The central issue was whether the Tribunal’s factual findings provided an evidential basis for concluding that protected beliefs caused the dismissal or the alleged harassment.

1. The GMB’s appeal against the discrimination and harassment findings was allowed. Findings that Mr Henderson’s protected beliefs were a substantial and effective cause of dismissal, and that three incidents amounted to harassment, were set aside. Findings of no unlawful discrimination and no unlawful harassment were substituted.
2. The fair-dismissal finding stood. There is no legal incompatibility in finding both a fair dismissal and discrimination, because unfair dismissal and direct discrimination have different statutory tests. The Tribunal’s findings supported its conclusion that misconduct was the principal reason, the investigation was reasonable, and dismissal fell within the range of reasonable responses.
3. Direct discrimination required an evidential foundation. The Tribunal’s comparator exercise was flawed because it excluded the misconduct which explained the dismissal. The proper focus was the reason why the decision-makers dismissed the employee. There were no findings that the dismissing or appeal officers were influenced by the protected beliefs, no evidence that other managers influenced them for that reason, and no material from which the requisite inference could properly be drawn.
4. Harassment required both a protected-characteristic connection and sufficient seriousness. The workload and temporary-office incidents had no evidential link to the protected beliefs. Although the picketing telephone call included a reference to being “too left-wing”, its political context was not analysed and it was an isolated, trivial incident rather than conduct sufficiently serious to create the statutory environment. Context must be considered when deciding whether unwanted conduct was related to a protected characteristic.
5. The remaining appeals were dismissed. The time-extension challenge was academic once the substantive Equality Act claims failed, although the Tribunal would have been entitled to extend time. The remedy appeal failed because the findings established that dismissal for gross misconduct was inevitable, so no financial loss would have resulted even without discrimination.

• Employment Appeal Tribunal: GMB’s appeal against the findings of direct discrimination and harassment allowed; the contrary findings were substituted. Mr Henderson’s appeals against the fair-dismissal and remedy decisions were dismissed: [2015] UKEAT 0073_14_1303.
• Employment Tribunal: Liability reasons sent on 30 September 2013. It dismissed unfair dismissal, wrongful dismissal, victimisation and unjustified-discipline claims, but upheld direct discrimination and harassment claims. Remedy reasons sent on 3 July 2014 awarded £7,000 for injury to feelings and no financial loss.