"A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."
"A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of- (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B."
"The Tribunal was unimpressed with Mr Hayes's reasoning for not locating the second claimant at Chelmsford. From the evidence before the Tribunal, it was quite clear that there were office and computer facilities sufficient for the second claimant's needs available at Chelmsford and there was no rational reason for him not to agree that the claimant should be based at Chelmsford for the two to three week period of the Olympic games."
"In the Tribunal's view, the respondent was entitled to form the view that the second claimant had become unmanageable. In those circumstances, dismissal was indeed inevitable."
“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.”
"80. Persuasively as these points were developed by Mr DeMarco, I do not accept them. None of these points are relied on expressly (or indeed implicitly) by the Tribunal, and they amount to pure speculation, without any evidential foundation beyond the claimant's assertions. If what Messrs Paul Kenny, Warr and Hayes thought or wanted is relevant at all, it can only be because they brought their wishes to bear somehow on the relevant decision makers. It is of course possible that Paul Kenny was behind a campaign to undermine and drive the claimant out of the respondent's employment following the picketing incident, and that he manipulated events in order to achieve that purpose. In that situation his reasons for doing so might be attributable to the decision makers or he might be found to have set an agenda that was followed by them. But there must be evidence to support a finding that such a situation exists and a detailed analysis and careful explanation of how he brought his wishes to bear on the decision makers. The need for careful findings is likely to be all the greater in a case where a tribunal also finds that the principal reason for dismissal genuinely operating in the mind of the decision maker is gross misconduct, that the investigation conducted is reasonable, and that dismissal is a fair sanction for such misconduct. 81. The Tribunal identified no such evidence, made no findings and provided no such analysis or explanation. On the contrary, whilst the Tribunal made findings that support a conclusion that Paul Kenny shouted at the claimant for being 'too left wing' in relation to the picketing incident in November 2011, the Tribunal expressly rejected allegations that Mr Warr and Mr Hayes treated him differently or less favourably in the immediate aftermath. Indeed there is no finding of anything untoward as far as the two managers are concerned until eight months later, and no finding that Paul Kenny had any involvement in matters related to the claimant's employment at all. There is a positive finding that Mr Warr was supportive of the claimant; and a finding that the claimant chose to contact Paul Kenny (see paragraphs 18.6 and 18.23) for advice and support over his difficulties with the Labour Party, both of which appear to be factually inconsistent with the points now advanced. There is nothing in the Tribunal's findings about the circumstances surrounding the investigation and the disciplinary hearings to suggest that Paul Kenny, Mr Warr or Mr Hayes had any involvement in or influence over the decisions made by Mr Brennan and/or Mr Phillips."
"88. In light of these conclusions, the finding of unlawful direct discrimination cannot stand. The problem with the Tribunal's conclusion at paragraph 53 is the absence of any findings of fact or evidential basis to support it. The Tribunal made unsupported legal or factual assumptions about disputed questions of less favourable treatment on protected belief grounds. There is no analysis of the factors relevant to that conclusion and the evidential basis for reaching the conclusion is nowhere identified. I am quite satisfied on the Tribunal's findings and in the absence of any identified evidential foundation that there was no material from which these inferences could properly be made and no evidential basis for the Tribunal's finding at paragraph 53 that a substantial cause of the dismissal was the claimant's protected belief."
“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.”
“... 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.”
“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.”
"Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment."
“Whilst I fully accept that these are fact sensitive matters for the Tribunal to determine, the incidents involving both Mr Warr and Mr Hayes are quite obviously trivial as even Mr DeMarco accepted. In my judgment the same is true of the picketing incident notwithstanding Mr DeMarco's contentions to the contrary. This was an 'incident' and not an 'environment'. Moreover, although isolated acts may be regarded as harassment, they must reach a degree of seriousness before doing so. True it is that the claimant was shouted at and that his letter was described as over the top and too left wing, but this did not prevent him from answering back to Paul Kenny (as the Tribunal found at paragraph 17.5), and nor did it prevent him from contacting Paul Kenny subsequently, for support in relation to his Labour Party difficulties. To conclude that the telephone conversation between Paul Kenny and the claimant in November 2011 was an act of unlawful harassment is to trivialise the language of the statute.”
“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.”
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