Xmas 2012 approached and a barristers’ chamber – Pump Court -obliged with a blog headlined, This Year’s Wakiest Cases: Festive focus on ‘discrimination on the ground of philosophical belief’. Perhaps these ‘freedom of thought and conscience’ cases are amusing for some lawyers because they cannot see them as part of a larger class struggle in Britain. Here’s a story of three unions and betrayal.
‘Philosophical belief’ is the device used to prevent employers from discriminating against workers because of their beliefs. Serious ‘philosophical beliefs’ attract legal protection.To qualify a belief must be genuinely held and meet the criteria set out in the global warming case, Grainger Plc v Nicholson (2010). The belief must therefore transcend mere opinion or viewpoint, relate to a substantial aspect of life, attain a certain level of cogency, seriousness, cohesion and importance, be worthy of respect in a democratic society and not conflict with the fundamental rights of others.
Even if claimants establish they hold a ‘philosophical belief’ they must show they were discriminated against specifically because of that belief. It’s a tall order. But people resort to this ‘legal remedy’ – provided in compliance with the European Convention on Human Rights – because bullying, victimisation and harassment by employers is generally not unlawful.
Many ‘philosophical belief’ claims are a response to the increasing authoritarianism of a mercenary and amoral managerial class. By way of illustration the BBC has argued that it would be absurd for a belief in the aims and values of the BBC or the NHS to be taken seriously. The BBC claimed that these aims and values are just mission statements, not beliefs.
The corporation was prepared to risk its reputation – and undermine the ideals of the NHS – to defend a claim of unfair dismissal. Clearly for market obsessed mandarins total control is critical. BBC journalists are expected to understand that the elevated values of the BBC are really just branding. So much for public trust.
The new system was all about ensuring greater control of teachers and a key way the government tried to do this was on specifying what teachers must demonstrate in observed lessons and in the marks their students got in order for schools to be seen as successful. The key word that would come to encapsulate the official view of the education system was the government’s new mantra of ‘targets’…
Furthermore, regulatory bodies have now begun to stipulate more and more performance indicators that all amount to an intrusive form of micro management and that take up more and more time to complete. So schools, recognising that performance indicators are so numerous and that many were in conflict and could not be achieved, have started now to become masters of prioritisation and have learnt to absorb huge amounts of administrative pressure.
And everyone within the system has become adept at tactical deference, bluffing, deception and bullying.
I do not think that teachers or indeed lawyers can use the law to defend themselves on grounds of conscience. Journalists certainly cannot as Maistry v BBC shows. The system is always ahead of the game because it makes up the rules. So much for democracy.
The concept of the ‘philosophical belief’ is a red herring and a distraction. It provides no protection while pretending to do so. Lord Justice Underhill in the Court of Appeal found it was impossible for the BBC to discriminate against the claimant as it could not have known he held a philosophical belief in the ‘pervasive’ BBC Values. This is perfectly true. Such a philosophical belief could only be established in February 2011 when the claimant appeared before Employment Judge Pauline Hughes – five months after he was sacked for being an idiot. Employers have nothing to fear. They can always plead ignorance of a philosophical belief at the time of discrimination.
The rule is, jam tomorrow and jam yesterday-but never jam today. It must come sometime to jam today, Alice objected. No it can’t said the Queen It’s jam every other day. Today isn’t any other day, you know.
Alice had the sense to object. Michelle Stanistreet who heads the National Union of Journalists has remained silent about the hypocrisy the BBC demands of its journalists. The NUJ, in its evidence to the Leveson Inquiry into phone hacking by newspapers, argued strongly for a “conscience clause” to be inserted into journalists’ contracts to protect them from being sacked if they refused to do unethical work which breached the union’s Code of Conduct. But it ignored Maistry v BBC which established BBC journalists had a right to integrity.
The NUJ did not support the claims of unfair dismissal, harassment and discrimination in Maistry v BBC. The practical consideration was that the facts would not matter to case-hardened judges and litigation would be a waste of resources. In hindsight this advice cannot be faulted. But significantly the NUJ was not prepared to defend its own agreement with the BBC on how issues of capability should be resolved. It claimed quite astonishingly that it could not tell if the BBC was trashing the agreement as this was a matter of subjective interpretation. When I complained that this was nonsense the NUJ withdrew all representation.
The BBC also argued that a belief in its Values amounted to a political belief and therefore could not be afforded legal protection. Judge Pauline Hughes recorded the following at paragraph 11 of her judgment of 29 March 2011.
“The respondent’s representative also submitted that the claimant’s asserted belief was in reality an opinion rather than a belief as such. It was submitted that as such, the asserted belief was akin to a political opinion, and that parliamentary debates suggest that political opinion is not intended to be covered by the 2003 Regulations or the provisions of the Equality Act 2010 which supersedes them. The respondent’s representative said that the question as to whether holding a political philosophy such as socialism, Marxism, communism or free-market capitalism might qualify was not determined in the case of Nicholson, and that in the first instance the case of Kelly -v- Unison, it was held by an employment tribunal that holding Marxist/Trotskyist views did not amount to a philosophical belief since political beliefs were not intended to be covered by the 2003 Regulations.”
At paragraph 19 she said: ” I did not accept that the claimant’s asserted belief was a political opinion or based on a political philosophy. However, even if it had been,the appellate courts have not yet definitively determined that question. Indeed, it can be seen from Nicholson, that Burton J could see no reason why a political philosophical belief would not be encompassed. Set against that background, I did not consider the case of Kelly -v- Unison could safely be relied on – it is a first instance decision and sets no precedent and my understanding is that it is on appeal.”
Judge Hughes also dismissed the BBC’s concern that a decision in favour of the claimant would have “the potential to open the floodgates such that the employment tribunals will be awash with claims from employees arguing they have been discriminated against for having a strongly held belief in the purpose or mission statement of their public or private sector employer.”
The BBC has never explained why it considers a belief in its values to be a political belief and therefore undeserving of protection. Or why it spurns the commitment of workers to the stated values of their employers. Citing the decision in Kelly v Unision in support of its argument however suggests the corporation is beyond embarrassment. In that case Judge Weiniger’s reasoning was that Marxist/Trotskyist views could not qualify as philosophical beliefs as they are repugnant and unworthy of respect in a democratic society. Judge Hughes did not regard the aims and the values of the BBC in this light. She said:
“Whilst I accepted that the public purposes set out in the Royal Charter and Agreement might fairly be characterised as idealistic in nature and/or as a “mission statement”, that does not negate the fact that the evidence before me was that those purposes arise because of a shared belief in the importance of public service broadcasting in a democratic society.”
Lynn Walsh provides an overview of the Unison dispute and a superb analysis of the judgment. The Unison Four were ostensibly disciplined for using a cartoon of the ‘three wise monkeys’ who ‘see no evil, hear no evil, and speak no evil’ to satirise the union’s refusal to permit resolutions from its branches. Unison’s white bureaucrats – playing the race card with liberal expertise – deemed the cartoon an insult to its black members.
The judgment itself exhibits the same disturbing features as in Maistry v BBC; disdain for facts, culture, knowledge, logic and law. Walsh says:
But the outrageous core of the judgment is that Marxist-Trotskyist beliefs, even if they qualify as ‘philosophical beliefs’ under the regulations, are “repugnant” and “unworthy of respect in a democratic society” – and therefore are not protected from discrimination and harassment by the 2003 regulations. In fact, Weiniger puts Marxism and Trotskyism in the same category as racism and homophobia. This, in effect, is a declaration of an open season for witch-hunting Trotskyists and other left-wingers in Unison and other unions. Moreover, it is quite clear from his judgment that Weiniger does this from a position of open ideological support for free-market capitalism and opposition to any philosophical trend that seeks to change the existing order of society.
No such monkey business in Maistry v BBC – apart from the challenge to ghetto programming. But NUJ representative Keith Murray – seconded to the union by the BBC – took the view that the member he was defending was breaching the agreement, not BBC management. This is of course a matter of personal opinion. The official, convenient and cynical position is that the NUJ cannot tell when an agreement has been broken.
In Maistry v BBC the claimant’s failure to attend a training session a month after he was sacked was one of the reasons given for dismissal. A second was that he had passed on press releases about the London Film Festival to colleagues. The assessors at the trial were understandably amazed but this is not mentioned in the judgment. Effectively each and every NUJ member at the BBC can be fired at the whim of management.
The GMB’s case against Keith Henderson is somewhat more spectacular. He claimed he was sacked for his “left wing democratic socialist beliefs” which an Employment Tribunal found to be a protected philosophical belief. The ET concluded he had been fairly dismissed but awarded damages for discrimination on the grounds of belief. The GMB appealed and the Employment Appeal Tribunal overturned the ET decision on the grounds that discrimination had not been proved. Here is how Jennifer Danvers at Cloisters sets out the issue.
Keith Henderson, a GMB Regional organiser was dismissed on 7 December 2012. At first instance the Tribunal held that Mr Henderson had been fairly dismissed for gross misconduct (being unmanageable and making unsupported allegations of collusion between the GMB and the Labour party), but that he had suffered direct discrimination and harassment on the basis of his “left-wing democratic socialist beliefs” for which he was awarded compensation for injury to feelings.
One of the acts found to amount to harassment took place following Mr Henderson being tasked with organising a picket line at the House of Commons that tried to stop Labour MPs crossing. Mr Henderson wrote a “day of action” letter and publicised the picket line in the media, which led to Ed Milliband facing some difficult questions from the Prime Minister. Mr Milliband’s office then raised this with the General Secretary of the GMB, Paul Kenny. Mr Kenny was then found to have called Mr Henderson and shouted at him stating that his “letter was over the top” and “too left wing” and that no MPs should be prevented from crossing the picket line (these findings of fact were made without the benefit of Mr Kenny giving evidence at the ET)….
In relation to the finding that the dismissal was both fair and discriminatory, Simler J found that there was an absence of evidence that Mr Henderson’s political beliefs operated on the minds of the dismissal decision-makers. She held that whilst it may be that the dismissal officers were unsympathetic, this was more likely because of Mr Henderson’s conduct, than his beliefs:
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.
In short it had not been shown that the GMB sacked Keith Henderson because of his convictions. This is as convincing as mud.
Jenny says, “the recent EAT judgment in Henderson v GMB is a must-read for practitioners seeking to advance or respond to claims of discrimination on the grounds of philosophical belief.”
I think she is barking up the wrong fee. The superior Court of Appeal judgment in Maistry v BBC says it is impossible to bring claims based on philosophical belief. The rest is fudge, melodrama and deafening silence.
Professor William I. Robinson at the University of California-Santa Barbara explains why our species is at the end of the line. This is actually the ‘must read’ for practitioners.
Cartoon not required.