Race, religion, opinions on Israel-Palestine and vicarious liability

An Employment Tribunal has been called upon to decide whether or not a trades union was, in effect, vicariously liable for anti-Israeli statements and resolutions by its members.

In Fraser v University & College Union [2013] ET 2203290/2011 (22 March 2013) the claimant, a member of the Union who described himself as a modern Orthodox Jew and a Zionist, brought proceedings alleging that the Union’s acts and/or omissions constituted unlawful harassment contrary to ss 57(3) and 26(1) of the Equality Act 2010. The alleged conduct on which he relied ranged over a wide field: but the nub of his complaint related to certain resolutions in relation to Israel debated at conferences of the Union and the tenor of those debates (in particular, the call for a boycott of Israeli academic institutions), resignations from the Union between 2007-2011 in response to its perceived anti-Semitic conduct, the Union’s  dealings with the Equality and Human Rights Commission and the rejection of the ‘Working Definition’ of anti-Semitism produced by what was then the European Union Monitoring Centre on Racism and Xenophobia. In short, he accused the Union of “a culture of institutional anti-Semitism”.

The Employment Tribunal dismissed Mr Fraser’s case in its entirety. One of the claims put forward had appeared arguable on its merits but had proved on closer scrutiny to be clearly unsustainable – and, in any event, it was out of time and therefore outside the Tribunal’s jurisdiction. The other nine were wholly unfounded and many were also out of time.

On the issue of whether or not Zionism was a protected characteristic for the purposes of the legislation:

“It seems to us that a belief in the Zionist project or an attachment to Israel or any similar sentiment cannot amount to a protected characteristic. It is not intrinsically a part of Jewishness and, even if it was, it could not be substituted for the pleaded characteristics, which are race and religion or belief…” (para 150).

As to Mr Fraser’s claim that the Union was vicariously liable for harassment said to have resulted from the conduct of fellow-members of the Union (not acting as agents) or from motions passed by its Congress, the Tribunal regarded the proposition as “wholly untenable” (para 151).

His complaint about certain resolutions in relation to Israel was without substance. The resolutions were passed by Congress, for whose decisions the Union itself, as an unincorporated association, could not be held liable. Through their employees and the NEC it had acted constitutionally in managing the debates and implementing resolutions except where they understood that the law precluded them from doing so (para 152). Moreover, the behaviour of the respondents was not connected in any way whatsoever with the claimant’s Jewishness, nor did it have the effect of violating his dignity or creating the necessary adverse environment for him (paras 153-154).

Finally, in relation to the specific complaint about certain resolutions in relation to Israel, the Tribunal pointed out that it was appropriate and necessary for it to take into account wider than those of the immediate parties, specifically Article 10 ECHR (freedom of expression) and Article 11 ECHR (freedom of assembly). Article 10(2) ECHR countenanced limitations on freedom of expression only to the extent that they were “necessary in a democratic society”; and the case-law emphasised repeatedly that freedom of expression must be understood to extend to information and ideas generally, including those which offend, shock or disturb society at large or specific sections of it. Accordingly,

“If the case were marginal (which it certainly is not), we would unhesitatingly hold, pursuant to the 1998 Act, ss3 and 12, that the narrow interests of the claimant must give way to the wider public interest in ensuring that freedom of expression is safeguarded” (para 156).

Moreover:

“We are … troubled by the implications of the claim. Underlying it we sense a worrying disregard for pluralism, tolerance and freedom of expression, principles which the courts and tribunals are, and must be, vigilant to protect…” (para 179).

Comment

Leaving aside the technical issue about vicarious liability and unincorporated associations, the key issue in this case is the extent to which one has a right not to be exposed to opinions that one might find offensive or shocking and how that is to be balanced against  freedom of speech and of association for those with whom one disagrees. The Tribunal pointed out (para 156) that the claimant was a campaigner and took the view that a political activist simply had to accept the risk of being offended by things said or done by his opponents: in short, that the wider public interest should prevail. We can only speculate as to whether it would have been less ready to adopt that approach had Mr Fraser not been an active campaigner for Zionism but simply an observant Jew.

In addition (as Robert Kellar points out on UKHRB), the Tribunal’s conclusion that Zionism was not “intrinsically a part of Jewishness” and its further implication at para 150 that it could be divorced from “religion and belief” seems to be somewhat at odds with the observation by the ECtHR in Eweida and Ors v United Kingdom. At para 82 of its judgment the Fourth Section ECtHR took the view that the manifestation of religion or belief was not limited to acts that are “intimately linked to the religion or belief” and, moreover, that the presence or absence of a sufficiently close and direct nexus between an act and the underlying belief to which it was related had to be determined on the facts of each case. Mr Fraser clearly regarded his Zionism as inseparable from his Jewishness – so in light of Eweida should the Tribunal have taken that at face value?

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