Worker argues unfair dismissal due to 'philosophical belief'
EAT to consider when a manifestation of a religious or political belief is appropriate
The Employment Appeal Tribunal (EAT) is to consider guidance on religious belief discrimination this week in GMB v Henderson, which has the potential to become a fundamental piece of case law.
The case is set to deal with the questions of an employee's left wing democratic socialism and what constitutes an appropriate 'manifestation of that behaviour in the workplace'.
The appeal will consider how a tribunal should analyse claims of discrimination and, in particular, the difficult interrelationship between comparators, the reason why and the burden of proof.
The case involves Keith Henderson, who was previously employed as a regional organiser in the General Municipal Boilermakers Union's (GMB) London region. His job involved undertaking political work as part of the region's political efforts on behalf of the Labour party.
Henderson was dismissed for gross misconduct following a series of incidents. He claimed he was unfairly dismissed because of his philosophical belief in "left wing democratic socialism", contrary to the Equality Act 2010.
Henderson told the Employment Tribunal he had been dismissed after organising picket lines at the House of Commons in November 2011 to protest against government plans to cut public pensions. It was alleged that the GMB General Secretary, Paul Kenny, contacted Henderson to say that an article he had written was "too left wing".
The claimant lost his claim for unfair dismissal, however, the Employment Tribunal concluded that "left wing democratic socialism is a philosophical belief for the purposes of the Equality Act 2010".
The tribunal went on to hold that although the principle reason for the Henderson's dismissal was his conduct, "a substantial part of the reasoning behind dismissing the claimant was because of his philosophical belief and was an effective cause of his dismissal".
Henderson's appeal is against a finding that he was fairly dismissed because he was unmanageable. Meanwhile, the union is cross-appealing against the finding that he was discriminated against contrary to the 2010 Act.
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Kevin Poulter is SJ's editor at large and a Legal Director in the employment team at Bircham Dyson Bell Protection against discrimination for holding a philosophical belief is a good idea in theory, but determining what constitutes a ‘philosophical belief’ worthy of legal protection has led to much argument and eyebrow raising in the courts, tribunals and from the media. For example, Employment Tribunals in 2011 held that an anti-fox hunting belief and a belief in the higher purpose of public service broadcasting were both capable of being protected under the Equality Act. Before the Equality Act came into force, however, protection was also afforded to a claimant with beliefs relating to man-made climate change. In each of these cases, the belief in question was intrinsically linked to the role of the individual or organisation they worked for and based on specific facts. Critics will no doubt say that equality laws have gone too far, but in each case the ‘genuine’ belief of the individual and the impact of that belief on their daily lives were carefully considered. Each was more than a mere opinion and often these go to the heart of the employment relationship. Case law is likely to be developed in the same vein, possibly inviting further criticism, but how broad the definition becomes will be down to each case that is brought to test the boundaries of this potentially wide-ranging law. |
‘A good idea in theory’