With not long to go until the General Election we thought it would be appropriate to cover a case that concerns political beliefs in the work place.
However, we must warn you that this week’s case is a real can of worms containing several questions:
– Are political beliefs protected characteristics?
– Can an employee be fairly dismissed if they were discriminated against?
– Is it acceptable for an employer to conduct disciplinary action against an employee who has an ongoing grievance?
Mr Henderson, the Claimant, was employed by The General Municipal and Boilermakers Union (GMB), the Respondent, as a Regional Organiser for the London area. Part of the Claimant’s job involved undertaking political activities in co-ordination with the Labour Party, which GMB has strong links to and is a key donor.
In 2011 GMB members who worked at the House of Commons voted for strike action, this included a picket line outside the House of Commons. Whilst not responsible for calling the strike, the Claimant, as regional organiser was tasked with organising the strike for GMB. The strike vote included a provision stating Labour MPs should not cross the picket line, something the Claimant publicised.
The provision for Labour MPs not crossing the picket line was picked up by several news outlets and political opponents of the Labour Party, who claimed the Leader of the party, Ed Milliband, was under the control of Trade Unions.
Shortly afterwards GMB received complaints from the Labour Party about the Claimant publicising the strike. The chairman of GMB then spoke to the Claimant, highlighting issues with the “over the top, left wing wording of his press release”.
The Claimant believed the picket line incident was a catalyst which resulted in him receiving unfavourable treatment from his managers, including being required to undertake onerous duties as a deliberate attempt to force him to resign and receiving unfounded complaints about his work on regular basis.
During this time the Claimant became heavily involved with his local Labour Party and had ambitions of becoming a councillor. However, a combination of a long commute, increased workload and increased political activity meant the Claimant was signed off work with stress.
The Claimant returned to work on a phased basis starting at four hours on alternate days. At the same time the Claimant began having issues with his local Labour Party and when questioned by fellow party member he cited his “onerous workload” as a reason for not returning calls.
The Claimant voiced his problems with the Labour Party to his manager. The manager noticed the workload comment and asked the Claimant to retract it, because, not only was it inaccurate due to the Claimant’s phased return to work, but it also reflected badly on GMB, who have strong connections with the Labour Party.
The Claimant refused and a heated argument ensued, the Claimant was threatened with disciplinary action due to insubordination, the Claimant replied “if you want to, do it” before storming out. The Claimant then made a request to work in a different location for the duration of the Olympics, this was rejected. The Respondent then became aware of the Claimant’s intentions to become a councillor, the Respondent felt they should have been informed of this as the role of a councillor would impact on the Claimant’s ability to fulfil his role with the Respondent.
The manager raised issues regarding the Claimant’s conduct. The Claimant, who was off work sick, raised a grievance with his manager for refusing his request to work outside of London during the Olympics, he also suggested that GMB and the Labour Party had colluded against him.
The Claimant refused to attend any meetings to address either his grievance or the disciplinary action. Despite his absence an investigation was carried out into the Claimant’s conduct and he was dismissed for gross misconduct on the grounds that he was unmanageable. The Claimant subsequently brought several claims to Tribunal.
The Tribunal held that the Claimant had been fairly dismissed for gross misconduct, this resulted in his claims for unfair dismissal, wrongful dismissal, victimisation and unjustified union discipline being dismissed. However, the Tribunal also found the Claimant had suffered direct discrimination and harassment as a result of his left wing political views, which were classed as a protected characteristic. The Claimant appealed his claims being dismissed and the Respondent appealed the discrimination and harassment judgement.
One of the principal decisions the EAT had to make was whether it was possible to be fairly dismissed and discriminated against. The EAT stated that there is no reason in why such a conclusion cannot stand if both judgements are supported by factual evidence. The Claimant’s appeal was subsequently dismissed.
However, the Respondent’s appeal was upheld, with the EAT citing a lack of evidence that the Claimant’s beliefs caused any discriminatory treatment or harassment. The EAT also clarified that all beliefs are equally protected and that philosophical or political beliefs may be just as fundamental to a person’s individuality and daily life as religious beliefs.
The lesson of today’s question is:
Yes, a political belief is a protected characteristic and is therefore something employers need be careful not to discriminate against.
Yes, an employee can be fairly dismissed and also discriminated against, providing there is satisfactory evidence to support both conclusions.
Yes, in some circumstances, if an employee with an ongoing grievance refuses to co-operate with an investigation it is acceptable to begin disciplinary action against them for another issue, providing you have given them opportunities to resolve their grievance.