Henderson v The General Municipal and Boilermakers Union

An Employment Appeal Tribunal may substitute its own decision where, absent the employment tribunal’s error of law, only one lawful result was possible. It must remit the case where the result remains an open question.

A party seeking to uphold a tribunal conclusion for which its reasons identify no evidential support must direct the appellate tribunal to evidence capable of supporting it. The appellate tribunal cannot presume that unidentified oral evidence supplied the missing basis.

Direct discrimination and purpose-based harassment under the Equality Act 2010 require examination of the relevant decision-maker’s mental processes. Harassment must also attain the seriousness conveyed by the statutory language; treating a trivial incident as harassment would improperly dilute that standard.

The appellant, a regional organiser employed by the respondent trade union, brought claims including direct discrimination and harassment because of his belief in left-wing democratic socialism. The Employment Tribunal upheld parts of those claims and awarded compensation for injury to feelings.

The Employment Appeal Tribunal held that the Employment Tribunal’s reasons were inadequate. It allowed the union’s appeal and dismissed the discrimination and harassment claims because the findings and evidence could not support the necessary conclusions about the relevant decision-makers’ motivation or purpose.

The appellant accepted the deficiencies in the Employment Tribunal’s reasoning but argued that the claims should have been returned to that tribunal for adequate reasons. The central issue was whether the Employment Appeal Tribunal could dismiss the claims as bound to fail rather than remit them.

1. Appeal dismissed. The Employment Appeal Tribunal had applied the correct distinction between substitution and remittal. Under the approach confirmed in Jafri v Lincoln College [2014] EWCA Civ 449, it may substitute its decision where the employment tribunal, properly directed, must have reached that result. If the result remains open, it may only remit the case.

2. Simler J did not decide disputed primary facts or undertake an evidential evaluation reserved to the Employment Tribunal. She concluded from the tribunal’s findings and the absence of supporting evidence that the claims were bound to fail. The findings contradicted central parts of the alleged discriminatory campaign and disclosed no basis for attributing the relevant belief-based motivation or purpose to the persons who dismissed the appellant or committed the alleged harassment.

3. The appellant could not preserve the Employment Tribunal’s conclusions merely by suggesting that unidentified oral evidence might have supported them. A party seeking to uphold a conclusion for which the tribunal’s reasons disclose no evidential support must identify the evidence said to provide that support. No contemporary documents, notes of oral evidence or relevant witness material were placed before the appellate courts to establish the necessary mental processes.

4. The substantive defects reinforced the conclusion that remission was inappropriate. Direct discrimination under section 13(1) of the Equality Act 2010 required evidence concerning the mental processes of the dismissing and appeal officers. Purpose-based harassment under section 26(1) required evidence both that the conduct related to the protected belief and that its purpose was to create the statutorily described adverse environment. Context was essential, and isolated conduct had to attain a sufficient degree of seriousness. The Employment Appeal Tribunal was entitled to conclude that the incidents involving the managers were unrelated to the protected belief and that the single rebuke referring to the appellant as too left wing could not properly satisfy the statutory standard.

Briggs LJ agreed with Underhill LJ.

1. Court of Appeal (Civil Division): The employee’s appeal was dismissed. The Employment Appeal Tribunal had been entitled to substitute dismissal of the discrimination and harassment claims because they were bound to fail.

2. Employment Appeal Tribunal: The employee’s liability appeal was dismissed. The union’s appeal was allowed, and the discrimination and harassment claims were dismissed. The remedy judgment consequently fell away.

3. Employment Tribunal: Most claims were dismissed, but parts of the direct discrimination and harassment claims were upheld. The employee was awarded £7,000 for injury to feelings.