Henderson v General Municipal and Boilermakers Union

The appeal concerned whether findings of unlawful direct discrimination and harassment (under the Equality Act 2010) made by an Employment Tribunal were sustainable in the absence of adequate reasoning linking the conduct complained of to the claimant's protected philosophical belief.

The Court set out that direct discrimination (section 13) and harassment (section 26) require consideration of the mental processes of the alleged discriminator/harasser and that the burden of proof provisions at section 136 apply. The Employment Appeal Tribunal had held that the Employment Tribunal's reasons were deficient and that, on the findings of fact and the evidence, no proper inference of discriminatory motivation or a purpose to create a hostile environment could be drawn. The Court of Appeal agreed, applying the established test on substitution versus remittal (O'Kelly / Jafri): where it is plain no tribunal properly directing itself could have reached the impugned conclusion, the appellate tribunal may dismiss the claim rather than remit.

Background and parties

• The appellant was employed by the respondent trade union as a regional organiser and was dismissed on 7 December 2012.
• The appellant brought Employment Tribunal claims including unfair and wrongful dismissal, direct discrimination and harassment on the ground of religion or belief (his belief described as "left wing democratic socialism"), victimisation and unjustified union discipline.

Procedural posture

• An Employment Tribunal (30 September 2013) dismissed most claims but upheld discrimination and harassment in part and awarded injury to feelings at a remedy hearing (£7,000).
• Both parties appealed to the Employment Appeal Tribunal. On 13 March 2015 Simler J dismissed the appellant's liability appeal and allowed the union's appeal in respect of the claims on which the appellant had succeeded, dismissing those discrimination and harassment findings and discharging the remedy judgment.
• The appellant appealed to the Court of Appeal only against the dismissal of his discrimination and harassment claims.

Nature of the issues

• (i) Whether the Employment Tribunal's findings and reasoning were adequate to sustain findings of direct discrimination (s.13) and harassment (s.26) in relation to three complained episodes and the dismissal.
• (ii) Whether, having found deficiencies in the Employment Tribunal's reasoning, the Employment Appeal Tribunal should have remitted the matter to the Employment Tribunal for fuller reasons or was entitled to dismiss the claims on the basis that no proper tribunal could have found for the claimant on the evidence.

Court's reasoning and conclusion

• The Court summarised the statutory definitions (ss.13, 26 and burden of proof under s.136) and emphasised that proof often requires consideration of the mental processes of alleged wrongdoers.
• The Employment Tribunal had found facts about three episodes (a rebuke by the General Secretary over picketing publicity, a confrontation with the claimant's line manager about an email, and refusal of a temporary relocation request) and that dismissal followed for misconduct. Its legal reasoning on why those events amounted to harassment or discrimination was brief and did not identify findings about the motivations or knowledge of the relevant decision-makers.
• Simler J at the Employment Appeal Tribunal analysed the factual findings and the evidence and concluded there was no evidential basis to infer that the decision-makers knew of or were motivated by the claimant's philosophical belief, and that the incidents were trivial and not shown to have the required purpose to create a hostile environment. She therefore dismissed the claims rather than remit them, applying the principle that an appellate tribunal may substitute its decision where, but for the legal error, the Employment Tribunal must have reached the same conclusion; otherwise it should remit.
• The Court of Appeal held that the Employment Appeal Tribunal had correctly applied that test, that the EAT's reasoning was careful and particular, and that the appellant had not identified evidence before the Employment Tribunal that could have sustained the necessary inferences about mental processes. The appeal was dismissed.

Wider context: the court noted the importance of clear findings on motivation and on whether conduct reaches the statutory threshold for harassment, and reiterated that trivial or isolated incidents will not normally amount to harassment.

Appeal dismissed. The Court held that the Employment Appeal Tribunal had correctly concluded that the Employment Tribunal's brief and unsupported reasons did not provide any evidential basis on which to infer that the relevant actors had the requisite discriminatory motivation or purpose to create a hostile environment; on the facts found and the evidence, the claims could not properly succeed and remittal was not appropriate.

Appeal from the Employment Appeal Tribunal (Simler J) judgment of 13 March 2015 which allowed the respondent/union's appeal and dismissed the claimant's discrimination and harassment findings; the Employment Tribunal decision under appeal was handed down with reasons on 30 September 2013 (Employment Tribunal, Watford). The present judgment is [2016] EWCA Civ 1049.