20 April 2015

Is it discriminatory to call someone left-wing?

As the General Election approaches, the temperature of political debate seems to be rising. The claim by one Tory MP that Ed Miliband had stabbed his brother in the back, and would do the same to the country, is just one example of this.

All may be fair in love and politics, but how far can you go in the workplace before risking discrimination claims from employees? The issue was considered in the recent case of GMB v Henderson UK/EAT/0073/14.

Mr Henderson worked for the GMB union as a Regional Organising Officer. He was also an advocate of left-wing democratic socialism. In late 2011, the GMB voted to establish a picket line outside the House of Commons and also voted that Labour MPs should not cross the picket line. Mr Henderson was responsible for organising the picket line and publicised the details to the media. The story was picked up by Sky News which in turn caused Ed Miliband some difficulty, with the matter being raised in the House of Commons during Prime Minister’s Questions. Mr Miliband’s office expressed their unhappiness to the General Secretary of the GMB, Paul Kenny, who in turn called Mr Henderson, shouted at him and said that his actions were over the top and too left wing. 

Following a number of other issues within the workplace, Mr Henderson was dismissed in late 2012. He brought a claim against the GMB alleging, amongst other things, that the telephone call made by Mr Kenny amounted to an act of harassment related to his left wing beliefs. Ultimately, the Employment Appeal Tribunal found in favour of the GMB. This was on the grounds that the telephone call was not, in itself, sufficient to amount to an act of harassment. 

What was not disputed, however, is that Mr Henderson’s belief in left-wing democratic socialism was a protected belief for the purposes of the Equality Act 2010 (the Equality Act). The Henderson case is just the latest in a series of claims where employees have argued that their views amount to a philosophical belief deserving of protection under the Equality Act. Amongst other things, anti-foxhunting beliefs, a belief in the need to live one’s life in a way which reduces the risk of climate change and a belief in the higher purpose of public sector broadcasting have all been found to amount to a philosophical belief. In such circumstances, the Equality Act makes it unlawful for employers to (amongst other things) discriminate against employees because of their belief or to subject them to harassment in relation to it. 

Whilst (in this, more than many other, areas of law), each case will turn on its facts, the Henderson case and others like it are a reminder of how extensive anti-discrimination rules in the workplace now are. So, if water cooler conversations get a little heated in the run-up to May 7th, it’s worth remembering that one person’s banter may be another person’s harassment. 

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