And The Law Says

“Trivial” acts cannot constitute harassment

March 24, 2015


(Henderson v GMB)

Mr Henderson was a union organiser for the GMB Union.  He caused political waves by arranging a picket at the House of Commons and calling upon labour MPs not to cross the picket line.  He subsequently alleged that he was bullied by his line manager and that this arose because he was told he was “too left wing”.  He was dismissed for a number of reasons including failing to carry out reasonable management instructions.  His dismissal was held to be fair but the discrimination and harassment claims based on his “democratic left wing socialist” beliefs were upheld based essentially on three incidents.

Overturning the finding of discrimination and harassment, the EAT held that philosophical belief should be given as much protection as religious belief but that it was important to distinguish between the employer’s knowledge of the belief (i.e. the reason for treating the employee in that way) and the employee’s reason for acting as he did (i.e. his belief).  Here there was no evidence on which the Tribunal could have found there to be discrimination due to knowledge of the employee’s belief.  Trivial acts should not be caught by the concept of harassment so the context and seriousness of the acts must be carefully considered, particularly if there is a single incident.  In this case, two of the incidents were “obviously trivial” and the third was an “incident” not an “environment”.

Richard Linskell Says:

This case is most interesting for what it says about how serious an act must be before it can cause harassment.  Previous case law has made clear that even a single incident of discrimination can create an intimidating, hostile or humiliating environment which is sufficient for there to have been harassment, as this is a subjective test for the recipient of the comment or act. However the EAT takes a very sensible approach by discounting what is objectively a “trivial” act and pointing out that an “incident” should be distinguished from an “environment”.  This will make it easier for employers to defend harassment claims in situations in which a single comment or a number of minor acts are relied upon by the claimant.  This will not help in all cases as it is the circumstances and context of the act that must be considered.

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