General Municipal and Boilermakers Union v Henderson (Unfair Dismissal) [2015] UKEAT 0073_14_1303

EAT
General Municipal and Boilermakers Union v Henderson (Unfair Dismissal)
[2015] UKEAT 0073_14_1303 · 2015-03-13
[41](v) If the Claimant proves such facts then the second stage is reached. The burden shifts to the employer who can only discharge it by proving on the balance of probabilities that the adverse treatment was not on the prohibited ground. If the employer fails to establish this, a finding of unlawful discrimination is required (save where justification is available).[98](vi) The two-stage approach is not obligatory: see Madarassy v Nomura International Plc [2007] EWCA Civ 33 . In some cases it may be more appropriate to focus on the reason given by the employer for the impugned treatment. If the reason or reasons given by the employer demonstrate that the prohibited ground played no part whatever in the adverse treatment, the case fails.[99](vii) A Tribunal is not entitled to infer discriminatory treatment from unreasonable treatment alone, but as Elias P (as he then was) explained in Bahl v the Law Society [2003] IRLR 640 that does not mean that the fact that an employer has acted unreasonably is of no relevance. Rather at paragraphs 99-101 he held:[100]“The fundamental question is why the alleged discriminator acted as he did. If what he does is reasonable then the reason is likely to be non-discriminatory. In general a person has good non-discriminatory reasons for doing what is reasonable. This is not inevitably so since sometimes there is a choice between a range of reasonable conduct and it is of course logically possible the discriminator might take the less favourable option for someone who is say black or a female and the more favourable for someone who is white or male. But the Tribunal would need to have very cogent evidence before inferring that someone who has acted in a reasonable way is guilty of unlawful discrimination.[101]By contrast, where the alleged discriminator acts unreasonably then a Tribunal will want to know why he has acted in that way. If he gives a non-discriminatory explanation which the Tribunal considers to be honestly given, then that is likely to be a full answer to any discrimination claim. It need not be, because it is possible that he is subconsciously influenced by unlawful discriminatory considerations. But again, there should be proper evidence from which such an inference can be drawn. It cannot be enough merely that the victim is a member of a minority group. This would be to commit the error identified above in connection with the Zafar case: the inference of discrimination would be based on no more than the fact that others sometimes discriminate unlawfully against minority groups.[125]The significance of the fact that the treatment is unreasonable is that a Tribunal will more readily in practice reject the explanation given than it would if the treatment were reasonable. In short, it goes to credibility. If the Tribunal does not accept the reason given by the alleged discriminator, it may be open to it to infer discrimination But it will depend upon why it has rejected the reason that he has given, and whether the primary facts it finds provide another and cogent explanation for the conduct ….” (viii) Finally, and also uncontroversial, it will be an error of law for a tribunal to find less favourable treatment on prohibited grounds where there is no evidence or material from which it can properly draw such an inference. As Mummery LJ held in Effa v Alexandra Health Care NHS Trust (unreported CA, 5 Nov 1999):
“In the absence of direct evidence on an issue of less favourable treatment on racial grounds, the Tribunal may make inferences from other facts which are undisputed or are established by evidence. However, in the absence of adequate material from which inferences can be properly made, a Tribunal is not entitled to find a claim proved by making unsupported legal or factual assumptions about disputed questions of less favourable treatment on racial grounds. This is so whether the discrimination is alleged to arise from conscious or subconscious influences operating in the mind of the alleged discriminator.”
Ground 1: Comparator issue 66. As Mr Williams submits, it is trite law that a tribunal is not bound to adopt a hypothetical comparator in order to address whether a Claimant was treated differently and less favourably than a similarly situated comparator is or would have been treated. This is because the question whether the Claimant has received less favourable treatment is often inextricably linked with the question why that treatment was received. A concentration on why the Claimant was treated as he was may accordingly answer the question whether the treatment was unlawful without any need to construct a hypothetical comparator. But although not bound to do so, if a tribunal does adopt this approach, it must do so correctly by ensuring that the relevant circumstances and attributes of the comparator reflect the circumstances and attributes relevant to the reason for the adverse treatment about which complaint is made. 67. At paragraph 51 the Tribunal held that the hypothetical comparator here would be an individual with similar qualifications and experience as the Claimant but who did not hold his protected belief. Having accordingly excluded the alleged misconduct from its identified comparator, it followed necessarily that the comparator would not have been dismissed and that the Claimant’s dismissal was accordingly less favourable treatment as the Tribunal found at paragraph 52. Mr Williams submits, and I agree that this approach fails to reflect the circumstances and attributes relevant to why the Claimant was dismissed, that he had become unmanageable and had made unsupported allegations of collusion. 68. He therefore contends that a proper comparator in this case would have been someone who had become unmanageable and made unsupported allegations of collusion, but who was not a left-wing democratic socialist, and given that such a comparator would have been treated in precisely the same way as the Claimant was treated, given the Tribunal’s finding that dismissal was inevitable in the circumstances, there was no less favourable treatment. 69. The problem with the comparator advanced by Mr Williams is that it is flawed for precisely the same reasons as he submits the comparator adopted by the Tribunal is flawed: this is a case where two reasons for the impugned treatment had been identified and given the Tribunal’s conclusion that the principal reason for the dismissal was misconduct, it follows from the Tribunal’s findings that the Claimant would have been subject to dismissal even if there had been no unlawful discrimination. As Elias P said in London Borough of Islington v Ladele [2009] IRLR 154 at [39] “In these circumstances the statutory comparator would have been treated in the same way as the claimant was treated. Therefore if a tribunal seeks to determine whether there is liability by asking whether the claimant was less favourably treated than the statutory comparator would have been, that will give the wrong answer.” 70. Accordingly, to ask whether a person with the same unmanageable conduct would have been dismissed in the circumstances suggested involves a meaningless comparison that produces the wrong answer. Rather, the focus should have been on the reason for the treatment bearing in mind that there may be more than one. 71. Mr Williams submits however that this approach cannot be reconciled with the statutory test for direct discrimination which requires less favourable detrimental treatment. He contends that the fact that the Claimant would have been dismissed in any event means that there cannot have been less favourable treatment in his case. It is not direct discrimination to treat employees in the same way (Ladele), and since dismissal would have been the outcome in both cases, a finding of unlawful direct discrimination is necessarily precluded. I disagree. To dismiss a person on grounds of their protected characteristic (even where there is a lawful ground for dismissal as well) is an affront to that person’s dignity and gives rise to a justified sense of grievance. A dismissal for both unlawful and lawful reasons is less favourable treatment as compared with a dismissal for lawful reasons only, and sounds in damages for injury to feelings even if not in any pecuniary award for compensation. 72. Although I do not accept that the Tribunal’s failure to construct a hypothetical comparator who had committed the same unmanageable conduct as the claimant was itself an error of law, I have concluded that the comparison exercise conducted by the Tribunal at paragraphs 51 and 52 was legally flawed and meaningless in the circumstances of this case. Once the Tribunal excluded the unmanageable conduct from its consideration of how the hypothetical comparator would have been treated, it was inevitable that the Tribunal would conclude that there was less favourable treatment, but the answer was positively misleading in the circumstances and not capable of determining whether there was liability on the facts of the Claimant’s case. 73. Does this error taint the approach adopted by the Tribunal in paragraph 53 as Mr Williams contends? The statement in the first sentence of paragraph 53 that the Claimant had satisfied the first stage of the burden of proof in that he had “proved primary facts from which a Tribunal could properly and fairly conclude that there has been a difference in treatment between the Claimant and hypothetical comparator because of the Claimant’s philosophical belief” rests on the meaningless comparison between the Claimant’s treatment and the treatment of somebody who committed no misconduct whatever, and is accordingly flawed. Mr DeMarco accepted this to be the case, but submits nevertheless that the Tribunal’s alternative approach midway in paragraph 53 is sufficient to sustain the Tribunal’s conclusion that there was unlawful direct discrimination in the Claimant’s dismissal. 74. Midway through paragraph 53 the Tribunal said “ 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 … the respondent’s explanation has failed to establish… that the claimant’s philosophical belief was not a substantial reason for his dismissal.” 75. Mr DeMarco submits that this reflects the proper focus on the “reason why” question that is required and this is accordingly a case where the error in the Tribunal’s approach to the comparator adopted is immaterial. Whether he is correct about this depends on my conclusions in relation to the third group of combined grounds of appeal pursued by Mr Williams. Ground 5: Burden of proof 76. Before turning to those grounds, I address briefly Mr Williams’ argument that the burden of proof provisions mandate a two-stage approach for the protection of employers and that by encouraging Tribunals to proceed directly to the second stage without first addressing the first stage, the courts have allowed Tribunals to assume that a prima facie case has been established and then look to respondents for an explanation. That, he submits, is unfair to respondents (and inconsistent with the genesis of the burden of proof provisions in European law) who ought not to be required to provide an explanation in a frivolous case based on assumptions and ought only to be required to provide an explanation where a prima facie case has been established. 77. There are two short answers to this argument which I reject. First, the case law and statutory provisions in relation to the burden of proof are clear and do not permit any assumption that a prima facie case has been established. This must be proved on the balance of probabilities by a complainant: see Madarassy. The only assumption permitted is an assumption that there is no adequate explanation for the prima facie case that has been proved: see Hewage v Grampian Health Board [2012] ICR 1054 at [31]. Where a Tribunal goes straight to the second stage and considers whether the Respondent has proved that there has been no discrimination, it is equally on the basis of a prima facie case having been proved by the complainant and not on any assumption that this is the case. Secondly and perhaps more importantly for the purposes of this appeal, there is nothing in the Tribunal’s decision to suggest that it ignored the first stage. As Mr DeMarco submits, the passage set out above from paragraph 53 of the Tribunal’s reasons reflects a two-stage approach and if there is a criticism he submits, it is the failure to set out reasons for those findings. Whether that is the limit of the criticism of the Tribunal’s approach remains to be determined. Grounds 2-4: Challenge to factual findings 78. The Respondent criticises the Tribunal’s conclusion that a substantial part of the reason for the Claimant’s dismissal was his philosophical belief, on the following grounds: (i) The factual findings made by the Tribunal relevant to the Claimant’s dismissal and in particular to why the dismissing and appeal officers dismissed him, make no reference whatsoever to his protected beliefs and the findings fully explain on a non-discriminatory basis why he was dismissed. (ii) The Tribunal made no finding that either the dismissing officer or the appeals officer knew that the Claimant was a left-wing democratic socialist or that the fact that he was a left-wing democratic socialist was operating on their minds at the time of dismissal. (iii) The Tribunal made no attempt to identify specific factual findings from which an inference of discrimination that called for an explanation could be drawn. There was instead, merely a bare assertion that the Claimant had proved primary facts that called for an explanation. In fact there was no prima facie case that needed to be rebutted. These points all ultimately boil down to one fundamental, critical question: what is the evidential basis and what are the primary findings of fact that underpin and support the conclusions expressed by the Tribunal at paragraph 53? Given that the Claimant’s case was that his dismissal was for unlawfully discriminatory reasons, the starting-point for the Tribunal was to identify the individuals responsible for it and in determining the reason for dismissal, to identify the set of facts which operated in their minds. There is no dispute that the two relevant individuals for these purposes are Mr Brennan as dismissing officer and Mr Phillips as appeals officer. The Tribunal made no findings of fact relating to the attitudes of Mr Brennan and Mr Phillips to the Claimant’s protected beliefs. The Tribunal made no findings that their approach to the Claimant was unusual or untoward or for any other reason called for some explanation. On the face of the Tribunal’s findings there is nothing in the circumstances surrounding the investigation and disciplinary process to suggest that the Claimant had proved facts from which a prima facie case that his dismissal was because of his protected beliefs could be inferred. Rather on the face of the Tribunal’s findings the Claimant’s misconduct appears to provide a full and non-discriminatory explanation for his treatment. 79. Mr DeMarco accepts that the only relevant finding in relation to the unlawfully discriminatory reason for dismissal is that set out at paragraph 53. He submits however, that the Tribunal’s conclusions at paragraph 53 are drawn from the totality of its findings of fact and not reached despite them. He contends that the findings, particularly in relation to harassment, afford a proper basis for the conclusions drawn. He points in particular to the critical findings about the picketing incident, where a vote to have a picket line was taken by others and all the Claimant was doing was publicising that picket and, consistently with his protected beliefs, that the picket line should not be crossed. This incident caused embarrassment to Ed Miliband and as a consequence, embarrassment to the Respondent. Mr DeMarco contends that for the General Secretary to pick up the phone to a regional officer such as the Claimant is extraordinary and unusual. The fact that he shouted at the Claimant for being too left-wing expressly links the picketing incident to the Claimant’s protected beliefs. Although Mr DeMarco accepted that this was the only incident directly linked with the Claimant’s protected beliefs, from then on, the Claimant was subjected to a campaign of harassment and although the Tribunal rejected many of the allegations he made, it accepted two of them: the incident with Mr Warr on 23 July 2012 and the refusal by Mr Hayes to allow him to relocate to Chelmsford on a temporary basis, where it rejected Mr Hayes’ evidence as untrue. The Claimant’s whole case to the Tribunal was that from the time of the picketing incident there was a campaign to undermine and ultimately dismiss him, orchestrated by Paul Kenny because of his protected beliefs. The Tribunal was entitled accordingly to look at the whole course of conduct and make the link between the harassment incidents and the dismissal. It was entitled to form the view (perhaps based on findings not made) that Mr Brennan and Mr Phillips held an antipathetic view towards the claimant because of his protected beliefs. The Tribunal’s conclusion that part of the reasoning in those who dismissed him was his protected beliefs means that the respondent failed to satisfy the Tribunal that the protected beliefs did not form part of the reasons for 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 such 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 is 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. 82. Additionally, Mr Williams submits that no prima facie case of discrimination could arise unless it were shown that either Mr Brennan or Mr Phillips knew of the Claimant’s protected beliefs or that he was manifesting his protected beliefs at the material time. He submits that they could not have been influenced whether consciously or subconsciously by something of which they had no awareness. The issue is all the more important in the context of religion or belief since, in contrast with certain other protected characteristics, religion or belief as a protected characteristic may not be obvious to others in the workplace. However, the Tribunal made no finding to that effect and indeed made no attempt to analyse the question of who knew what. If it had done so, he submits, it would have appreciated that there was in fact no evidence that these individuals were aware of the Claimant’s protected beliefs. 83. So far as the knowledge of these officers of the Respondent is concerned, Mr DeMarco submits that both allegations of misconduct found against the Claimant are directly connected with his protected beliefs: challenging the authority of line managers in a trade union is part of his belief in the democratic process and establishing socialism through democratic processes. Further, two emails were relied on as evidence supporting the requisite knowledge of Mr Brennan and Mr Phillips. The first dated 22 November 2012 being the email from the Claimant to Mr Brennan, the second, a similar email dated 14 December 2012, sent to Mr Phillips; both setting out his response to the allegations made against him. 84. Again, none of the points identified by Mr DeMarco were relied on expressly by the Tribunal. In any event I do not consider that these facts could justify an inference that Mr Brennan and/or Mr Phillips knew of the Claimant’s protected beliefs, and were substantially influenced by it in dismissing him. First, I do not consider that challenging the authority of line management in an employment context or making unsubstantiated allegations of collusion has anything to do with left-wing democratic socialism. Consideration of the Claimant’s misconduct would not in itself have required any thought or discussion about his protected belief; and there is no evidence of any discussion or focus on this point by either Mr Brennan or Mr Phillips. 85. Secondly, no part of the Claimant’s explanation (as set out in the two emails) is attributed to or said to be related in any way to his protected beliefs. Indeed in relation to the Alan Olive email his explanation for refusing to accede to Mr Warr’s request is that his employer had no right to prevent him from exercising freedom of speech in an email to Alan Olive. A similar statement is made by him in relation to the allegations of collusion which he asserts is an expression of opinion for which his employer had no right to discipline or censor him. Having set out his response to the seven allegations, concluding that Mr Warr had acted in an un-comradely manner towards him, he set out his allegation of discrimination on “grounds of political belief” which appears to focus largely on alleged moves being made against him politically because of his involvement and support in the Labour Representation Committee, a pressure group promoting socialism within the Labour Party. The emails refer only to the picketing incident and the fact that he had been shouted at by Paul Kenny who told him his letter was over the top and too left-wing, and that he should allow all Labour MPs to cross the picket line, but make no attempt to link that incident to any of the matters for which he was being disciplined.[86]Thirdly, so far as the incident between Mr Warr and the Claimant on 23 July 2012 is concerned, there was undoubtedly a heated exchange in which Mr Warr threatened the Claimant with disciplinary action but there is nothing whatever in the findings (nor has any evidence been identified) to suggest that this had anything whatever to do with the Claimant’s protected beliefs. Rather the request concerned a statement reasonably believed by Mr Warr to be false, made to a Labour Party Official that could reflect badly on the respondent. The Tribunal’s findings provide a full non-discriminatory (and reasonable) explanation for Mr Warr’s treatment, and there is no reason for concluding that Mr Brennan would have had any other view of it. The same is true of Mr Hayes’ refusal to allow the Claimant to relocate temporarily to the Chelmsford office. Although the Tribunal rejected as untrue Mr Hayes’ explanation and found no rational explanation for Mr Hayes’ unreasonable actions, that is not the same as finding no explanation for discriminatory treatment. The Tribunal may have been entitled to draw inferences that he behaved unreasonably but it is difficult to see what proper basis there was for concluding that the Claimant’s protected beliefs played any part in this treatment in the first place. Again, consideration of the Claimant’s misconduct would not in itself have required any thought or discussion by Mr Brennan about his protected beliefs, and there are no findings of fact that suggest Mr Brennan should have been alerted to a discriminatory reason for Mr Hayes’ treatment of the Claimant.87. The Tribunal may well have concluded that management in the form of Mr Hayes, Mr Warr and Paul Kenny were not particularly sympathetic to the concerns raised by the Claimant about his treatment by the Labour Party. There may have been a degree of hostility between Mr Warr and the Claimant on 23 July. However, it is difficult to see how this supports an inference that a substantial reason why Mr Warr acted as he did was the Claimant’s belief in left wing socialism rather than his conduct on that occasion. The same is true of Mr Hayes and Paul Kenny, and even more so, of Mr Brennan and Mr Phillips. Even if Paul Kenny pressed Mr Hayes to instigate a disciplinary investigation (as to which there is no evidence at all), that would not mean that the reason for the treatment is the Claimant’s protected beliefs. What is more likely to have bothered Paul Kenny and the other managers is not the Claimant’s protected beliefs per se but his conduct in refusing to accept reasonable management instructions etc. The Tribunal did not address the distinction which the Respondent sought to draw before it, between the Claimant’s protected beliefs and his conduct arising from it. In the absence of any analysis or explanation of its conclusion at paragraph 53, there can be no confidence that it avoided the trap identified in Ladele of confusing the Respondent's reasons for treating the Claimant as it did with his reasons for acting as he did. As Elias P explained in that case, these are not the same thing at all.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.89. It follows that it is unnecessary for me to consider Mr Williams’ argument about the distinction between treatment based on manifestation and treatment based on the belief itself. It seems to me that the short answer to the interesting points raised by Mr Williams in relation to manifestation is that the Tribunal held that it was the Claimant’s belief per se that was a cause of his dismissal (see paragraph 53). There was in the circumstances no need to consider manifestation. The point simply did not arise. There was no evidential or factual basis for that conclusion, but that is a different point. Appeal against findings of unlawful harassment[90]I turn to consider the appeal against the findings of unlawful harassment. The Tribunal dealt with this even more briefly. The relevant passages are set out above and show that the Tribunal found three instances of unwanted conduct established out of the ten alleged. It reached the conclusion that the unwanted conduct was related to the Claimant’s protected beliefs and had the purpose of creating an intimidating, hostile or humiliating environment for the Claimant. 91. 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 acts 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);[92](iii) the Tribunal failed to consider whether the Claimant’s harassers had knowledge of his beliefs (ground 8). Mr Williams contends 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.93. Taking the three incidents in turn, 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.94. So far as concerns the incident involving Mr Hayes, again there is nothing in the Tribunal’s factual findings to establish that Mr Hayes’ 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 paragraph 17.6 and 17.7 effectively rejecting the Claimant’s assertions 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.95. The picketing incident is different because here there was a direct link with the Claimant’s protected beliefs in the comment that he was being “too left-wing”. However, it is apparent from the Tribunal’s findings that the context of the telephone call between Paul Kenny and the Claimant was the high profile political difficulties the Claimant’s actions were perceived to have caused to Ed Miliband. That context potentially explained both why Paul Kenny acted as he did and why the exchange with the Claimant was heated, but is neither considered nor addressed in the Tribunal’s conclusion that Paul Kenny’s purpose was to create an intimidating, hostile or humiliating environment for him.96. In Warby v Wunda Group Plc Langstaff P quoted from a Judgment of HHJ David Richardson at paragraph 16 as follows:
“We wish to emphasise this last question. The provisions to which we have referred find their place in legislation concerned with equality. It is not purpose of such legislation to address all forms of bullying or antisocial behaviour in the workplace. The legislation therefore does not prohibit all harassment, still less every argument or dispute in the workplace; it is concerned only with harassment which is related to a characteristic protected by equality law… In our judgement, when a Tribunal is considering whether facts been proved from which it could conclude that harassment was on the grounds of sex or race, it is always relevant, at the first stage, to take into account the context of the conduct which is alleged to have been perpetrated on the grounds of sex or race. The context may, for example, point strongly towards or strongly against a conclusion that harassment was on the grounds of sex or race. The Tribunal should not leave the context out of account at the first stage and consider it only as part of the explanation at the second stage, after the burden of proof has passed…” 97. I respectfully agree. It seems to me that an inference in this case appears to have been drawn that unwanted conduct was attributable to the Claimant’s protected beliefs without any regard for the context of that conduct. Whilst it is for the Tribunal to determine that context in light of the facts, here the Tribunal’s own findings pointed strongly against a conclusion that the asserted acts of harassment had anything whatever to do with his protected beliefs, and no evidential basis to support the contrary conclusion, beyond merely the Claimant’s assertions, has been identified. 98. Even if I am wrong about that, in my judgment it was not open to the Tribunal in relation to any of these incidents as found, to conclude that there was unlawful harassment on the ground of the Claimant’s protected beliefs. This was a case where the Tribunal found that the respondent’s purpose in relation to the three incidents was to create an intimidating, hostile or humiliating environment for the Claimant. But as Elias LJ said in Land Registry v Grant [2011] ICR 1390 at [47]: “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 .”
[99]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.[100]For all these reasons, in my judgment the finding of unlawful harassment cannot stand. There was no evidential or factual basis on which the Tribunal could have concluded that there was unlawful harassment on the grounds of protected beliefs in the three incidents identified. The appeal on this ground is accordingly upheld. Time101. Separately by ground 9 the respondent seeks to challenge the Tribunal’s decision to extend time in this case. The Tribunal’s decision to extend time cannot survive given my conclusions on direct discrimination and harassment. Had I been required to consider the respondent’s appeal as a free-standing point, I would have rejected it. Tribunals have a very wide discretion to extend time and may consider any factor regarded as relevant. Here, the Claimant gave evidence explaining why he only lodged his claims after the dismissal took place (his absence with stress-related illness and a wish to exhaust internal procedures). Neither was challenged and the Tribunal was entitled to accept this evidence and conclude that it would be just and equitable to extend time. I would not have concluded that the Tribunal erred in law in exercising its discretion as it did. But for the reasons given this point is academic. Remedy Appeal102. Finally, in light of my conclusions above the Remedy decision cannot stand. In the circumstances I shall express my views on the Claimant’s appeal against that decision shortly.103. The Claimant challenges the Employment Tribunal’s decision to make no award for financial loss consequent on his discriminatory dismissal. The reasons for that decision are at paragraphs 6 to 9 of the Remedy decision. In short, although referred to Abbey National v Chagger [2010] IRLR 47 , the Tribunal regarded Lisk-Carew v Birmingham City Council [2004] EWCA Civ 565 as applicable to the facts of this case, despite it being a victimisation and not a direct discrimination case. The Tribunal referred back to the liability decision and its findings that the Claimant was fairly dismissed and that the respondent was entitled to come to the view that he had become unmanageable. At paragraph 7 it held that his misconduct was the dominant cause of the dismissal, and following Lisk-Carew made no award of financial loss.104. It is common ground that unlawful discrimination is a statutory tort so that compensation is awarded on a tortious basis. In other words, an award of compensation should put the complainant in the position he or she would have been in had the statutory tort not been committed by compensating him for loss flowing ‘directly and naturally’ from the discriminatory act: see Essa v Laing Ltd [2004] ICR 746 at [37]. Where the statutory tort is a discriminatory dismissal, it is necessary to ask what would have happened had there been no discriminatory dismissal.105. Accepting this, Mr Rahman criticises the decision on the basis that a finding that a substantial part of the reason for dismissal was the Claimant’s protected beliefs which infected the decision to dismiss and means that it is not possible to say what would have happened had no discrimination occurred. This was a case, he submits, where the percentage chance approach in Chagger should have been applied, and might materially have affected the outcome.106. I disagree for the following reasons. Although in the liability decision, the Tribunal found two reasons for the Claimant’s dismissal (a lawful reason leading to his fair dismissal, and an unlawful one that played a substantial part in the reasoning), the finding that the dominant cause of the dismissal was the Claimant’s own misconduct was a finding that this misconduct was the dominant cause of the loss flowing from his dismissal. Or to put it another way, that he would have been fairly dismissed in any event irrespective of the discriminatory reasons.107. Although not spelt out by the Tribunal, this conclusion flowed inexorably from the Tribunal’s findings at paragraphs 45 and 46 that misconduct was the principal, fair reason for dismissal and indeed, dismissal was inevitable in the circumstances of his case, and that the Claimant was guilty of gross misconduct justifying his immediate dismissal without notice. In any event, on the facts found by the Tribunal, applying Chagger would have led to the same result: this is a case where there was certainty of outcome therefore and a nought percent chance of the Claimant remaining in employment irrespective of the unlawful discrimination that occurred.108. Accordingly no arguable error of law arises on the Claimant’s appeal against the Remedy decision which fails. Conclusion[109]Accordingly for the reasons given above, I am satisfied that there is no proper evidential or factual basis for concluding that the Claimant was treated less favourably because of his protected beliefs by Mr Brennan and Mr Phillips in dismissing him. Nor was there a proper basis on which the Tribunal could have concluded that there was unlawful harassment on the grounds of protected beliefs in relation to the three incidents of unwanted conduct by Paul Kenny, Mr Warr and Mr Hayes. The Claimant’s assertions (there being nothing more than this by way of evidence identified as available but in respect of which findings were not made) that his protected beliefs were at least a significant part of the reason for the impugned treatment are not supported by any evidence and amount to no more than unsupported speculation. In these circumstances I am satisfied that it would not be open to a tribunal properly directing itself as to the law to reach any other conclusion. There is only one outcome on the evidence and the findings made by the Tribunal in this case. The Respondent’s appeal on these grounds is accordingly upheld, and I substitute findings that there was no unlawful discrimination or harassment.110. I dismiss that part of the Respondent’s appeal which sought separately to challenge the Tribunal's decision to extend time; and I dismiss the Claimant’s appeals in relation to the finding that the dismissal was fair, and in relation to remedy.111. Finally and for completeness, I record that a number of additional points were made during oral submissions and in the skeleton arguments on both sides. I have in this Judgment sought to deal with what I consider to be the principal points raised. Both sides can however be assured that I have carefully considered all of the matters advanced in written and oral argument on their behalves.