Is socialism a “protected belief”? – GMB v Henderson

Background

Keith Henderson was a Regional Organiser for the General Municipal and Boilermakers Union (GMB) and was dismissed for gross misconduct. He appealed to an Employment Tribunal, which found that he had been fairly dismissed but that he had also suffered unlawful direct discrimination and harassment on account of his “left-wing democratic socialist beliefs”, which included:

“(i) a belief in establishing ‘socialism through democratic processes and [propagating] its ideals within the context of a democratic political system through a working-class industrial and political movement’;

(ii) a belief in ‘workers’ control’.., a term meaning ‘participation in the management of factories and other commercial enterprises by the people who work there. Crossing workers’ picket lines contradicts this aim because it undermines workers’ ability to control their workplaces’” [6]

– and which the ET held to be protected beliefs. The lower tribunal also held:

  • that the protected beliefs formed a substantial part of the reasoning for his dismissal and were accordingly an effective cause of it;
  • that three alleged incidents of unwanted conduct by the GMB relating to his protected beliefs had in fact taken place; and
  • that those incidents had been intended to create an intimidating, hostile or humiliating environment for him.

It therefore awarded him compensation for injury to feelings.

Both parties appealed: Mr Henderson against the finding that his dismissal had been fair and the GMB against the findings of unlawful direct discrimination and harassment.

The decision of the Employment Appeal Tribunal

On the facts, the EAT reversed the lower tribunal’s finding that Mr Henderson had suffered unlawful direct discrimination and harassment on account of his “left-wing democratic socialist beliefs”: General Municipal and Boilermakers Union v Henderson (Unfair Dismissal) [2015] UKEAT 0073 14 1303. In doing so, however, Simler J made two important preliminary observations at paragraph 62 of her judgment:

“First, to the extent that Mr Williams [on behalf of the GMB] appeared in the course of argument to suggest that less protection for a philosophical as opposed to a religious belief is to be accorded by the legislation, that proposition is not accepted. The law does not accord special protection for one category of belief and less protection for another. All qualifying beliefs are equally protected. Philosophical beliefs may be just as fundamental or integral to a person’s individuality and daily life as are religious beliefs. In this case the Tribunal identified precisely what the claimant’s belief is at paragraph 14, specifying the central tenets of his belief. At paragraph 48 it concluded that he is a ‘left-wing democratic socialist’ and held the beliefs identified. Moreover it found that ‘there were clear outward signs of those beliefs being manifested… particularly clear from the picketing incident…’ The Tribunal concluded that left-wing democratic socialism is a protected belief for the purposes of the Equality Act 2010 and this conclusion is not challenged on this appeal” [emphasis added].

She decided that there was “no proper evidential or factual basis” on which to conclude that Mr Henderson had been treated less favourably because of his protected beliefs by GMB in dismissing him or that he had been unlawfully harassed on grounds of protected beliefs in relation to the three incidents of unwanted conduct of which he had complained [109]. She dismissed Mr Henderson’s appeals in relation to the finding that the dismissal had been fair and in relation to remedy [110].

Comment

S 10 Equality Act 2010 (Religion or belief) reads as follows:

“(1) Religion means any religion and a reference to religion includes a reference to a lack of religion.

(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

(3) In relation to the protected characteristic of religion or belief—

(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular religion or belief;

(b) a reference to persons who share a protected characteristic is a reference to persons who are of the same religion or belief.”

So what, exactly, is a “belief” for the purposes of discrimination law? “Religion” is fairly easy to recognise — the more so since Lord Toulson’s helpful working definition in R (Hodkin & Anor) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77 — but “belief” is rather more difficult.

Commenting on the judgment, Neil Addison points out that it was never Parliament’s intention that the terms of the legislation should protect party-political beliefs and quotes Home Office Minister Baroness Scotland during the Lords debate on the Bill to that effect:

“It will be for the courts to decide what constitutes a belief for the purposes of Part 2 of the Bill, but case law suggests that any philosophical belief must attain a certain level of cogency, seriousness, cohesion and importance, must be worthy of respect in a democratic society and must not be incompatible with human dignity. Therefore an example of a belief that might meet this description is humanism, and examples of something that might not—I hope I do not give any offence to anyone present in the Chamber—would be support of a political party or a belief in the supreme nature of the Jedi Knights” [Lords Hansard 13 July 2005 col 1109].

It is clear from that quotation that Neil is absolutely correct in his basic assertion: but neither the drafting of s 10 nor the “cogency, seriousness, cohesion and importance, etc…” test resolves the problem of precisely how to distinguish between party politics and political philosophy. Moreover, it appears from [62] that Simler J did not feel obliged to explore the matter further because the point had not been in dispute.

Because the point was not argued, the judgment makes no mention either of Grainger PLC & Ors v Nicholson [2009] UKEAT 0219 090 311 (where the belief in question was in man-made climate change and the alleged moral imperatives arising from it) or of Maistry v British Broadcasting Corporation [2011] ET 1313142/2010 (in which the belief was that public service broadcasting had the higher purpose of promoting cultural interchange and social cohesion). In both those cases it was held that the claimants’ beliefs, if genuinely held, were capable of being a philosophical belief for the purposes of the Employment Equality (Religion or Belief) Regulations 2003.

So are the theoretical Marxism of Marx and his followers or the Conservatism/economic neo-liberalism of writers such as Oakshott, Friedman and Hayek merely party-political or do they have more profound implications of a kind that would attract the “cogency, seriousness, cohesion and importance” test? As Bs Scotland predicted, “It will be for the courts to decide”: and it is not an easy decision for the courts to make. But if allegiance to the BBC Charter is, potentially at least, a protected belief, why not allegiance to “left-wing democratic socialism”?

Cite this article as: Frank Cranmer, "Is socialism a “protected belief”? – GMB v Henderson" in Law & Religion UK, 23 March 2015, https://lawandreligionuk.com/2015/03/23/is-socialism-a-protected-belief-gmb-v-henderson/

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