Racial harassment claim by Jewish teacher over union’s Israel-Palestine policies fails – Robert Kellar

121221-university-college-unionMr R Fraser -v- University & College Union – Case Numbers: 2203390/201 – Read judgment

In this case, a member of the Union brought various claims of harassment related to his “race, religion or belief” under section 57 of the Equality Act 2010. The wide ranging allegations made by the Claimant arose, in essence, from the way in which Union had handled the Israel/Palestine debate. For example, claims arose from motions debated at the Union’s congress on proposals for a boycott of Israeli academic institutions and related questions. The Claimant alleged that the Union was guilty of “institutional anti-Semitism” which he alleged constituted harassment of him as a Jewish member of the Union.

The Tribunal described the litigation as being “gargantuan” in scale. It heard from 34 witnesses including academics and MPs. The hearing lasted 20 days and required 23 hearing bundles. Ultimately, in an extremely robust decision, the Tribunal rejected the Claimant’s allegations in their entirety. It found them to be “manifestly unmeritorious” and an “impermissible attempt to achieve political end by litigious means”. The Tribunal also expressed themselves as being worried by the implications of the claim. They sensed that underlying the litigation was a “worrying disregard for pluralism, tolerance and freedom of expression”. Of particular interest was the way in which the Tribunal dealt with issues of legal principle at heart of the claim.

Points of Principle

First, the Tribunal did not accept that the Union bore “institutional responsibility” for the acts or omissions of its individual members. Although the common law had evolved in recent years it had not come close to rendering unincorporated associations vicariously liable to a member for upset caused by the behaviour of a fellow member.  In any event, it was clear that the relevant Equality Act provisions did not extend vicarious liability to cover the acts complained of (see paras. 19 – 28).

Second, it was not necessary for there to be a “substantial” connection between the conduct complained of and the protected characteristic: in this case the Claimant’s membership of the Jewish religion. The “related to” test arising from the Equality Act denoted a “loose, associative link” between the behaviour under consideration and the protected characteristic. For example, repeated criticism of the Catholic Church as an institution could be seen as “related to” the religion that it espoused.  However, the Tribunal emphasised that that the conduct complained of still needed to relate to the protected characteristic (see para. 35). This criterion was not met in the present case (as to which see further below).

Third, notwithstanding the potentially broad scope of harassment protection it also needed to be subject to “sensible limits”. The Tribunal needed to consider whether “reasonable objection” could be raised to the conduct complained of. It also needed to consider whether it was reasonable for the conduct to have the effect complained of. The statute required an objective approach albeit one which required consideration of the perception of the Claimant. Central to this objective approach was a test of the “gravity” the conduct complained of.  Further, whilst the conduct did not need to be specifically aimed at the Claimant the “further he stands” from it the less likely it is that the Tribunal would find that it was reasonable for the conduct to have the effect complained of (see paras. 36 to 42).

The Human Rights Context

The Tribunal held that the obligation to take into account reasonableness required it to have regard to interests wider than those of the immediate parties. Accordingly, it was appropriate for the Tribunal to take into account Article 10 ECHR (freedom of expression) and Article 11 ECHR (freedom of assembly).  The Tribunal quoted Tugendhat J in Trimingham v. Associated Newspapers [2012] 4 All ER 717:

…pluralism requires members of society to tolerate the dissemination of information and views which they believe to be false and wrong. This can be difficult for people to understand, especially if the subject is an important one and they are so convinced of the rightness of their views that they believe that any different view can only be the result of prejudice. Welcoming pluralism cannot be justified by logic. But in a society where people in fact hold inconsistent views about important matters, pluralism is a practical necessity if that society is to be free

In the present context it was important to note that the Claimant was a campaigner. It followed that he should be taken to have accepted the risk of being offended by things being said or done by his political opponents.  Article 10 (2) ECHR emphasises that freedom of expression should only be limited where this was “necessary in a democratic society”. The relevant jurisprudence stresses that freedom of expression must be understood to extend to ideas generally “including those which offend, shock of disturb society at large or a specific section of it”. Had the case been marginal, the right to freedom of expression would have been determinative (applying the Tribunal’s duties under sections 3 and 12 of the Human Rights Act 1998).

Comment

The Tribunal’s emphasis on plurality and freedom of expression under Article 10 ECHR is, in the author’s view, welcome. More questionable is the ET’s finding (at para. 150) that an attachment to Israel or any similar sentiment was not a ‘protected characteristic’ for the purposes of the Equality Act. This was because it was not “intrinsically part of Jewishness”. Even if it was, “it could not be substituted for the pleaded characteristics, which are race and religion or belief”.

There is a degree of tension between this finding and the Tribunal’s own acceptance elsewhere in their judgment that repeated criticism of the policies of the Catholic Church, could “relate to” the protected characteristic of Catholicism. The example is given of inadequate governance which has allowed sexual abuse of minors. The ET stated that: “in our view repeated criticism of any religious institution could be seen as “related to” the religion which that institution espouses” (para. 35). However, if repeated and intemperate criticism of secular policy issued by the Vatican “relates to” Catholicism, why should similar criticism of policy issued by the Jewish state not “relate to” the Jewish community? What if the policy in question has religious implications: for example the status gay marriage, state subsidies of Jewish schools or the political status of holy sites claimed by different religious communities?

The Tribunal’s findings as to the definition of religion for the purposes of the Equality Act may also be contrasted with the definition of religion for the purposes of Article 9 ECHR (Freedom of Religion). In the recent case of Eweida and Others v. the United Kingdom the European Court of Human Rights observed (at para 82, emphasis added):

 In order to count as a “manifestation” within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question

It clear that the perception of the person affected is an important factor in considering whether “harassment” has taken place within the meaning of the Equality Act (see section 26 (4) (a)). Should a similar approach not be adopted in considering whether an act of harassment relates to a “protected characteristic”? It is arguable that the strong personal attachment felt by many Jewish people to Israel should be sufficient – at least in principle – to attract the protection of the Equality Act.

The European Union Monitoring Centre on Racism has defined anti-Semitism as including rhetorical or physical manifestations against “Jewish community institutions”. It has also observed that the tone or content of the language used to criticise Israel (“conceived as a Jewish collectivity”) may cross the line into anti-Semitism:  for example where anti-Semitic stereotypes are employed or using symbols associated with classic anti-Semitism.

It is uncontroversial that the Equality Act should not be used as basis to suppress robust political discussion and debate. That undoubtedly includes robust criticism of and campaigning against the policies of any state. The Tribunal should be astute to guard against any interference with this. However, where this occurs within the workplace, and ‘crosses the line’ into anti-Semitism, or any other form of discriminatory behaviour, it is strongly arguable that the protection of the Act should be fully engaged. Article 10 should not be used as shield to protect against liability for such conduct. Where the line is to be drawn in each case is a matter for the Tribunal. Whilst this might well require the Tribunal to undertake a difficult and nuanced balancing exercise it should not, in the author’s view, be avoided by narrowing the scope of “protected characteristics” under the Equality Act.

Robert Kellar is a barrister at 1 Crown Office Row

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5 thoughts on “Racial harassment claim by Jewish teacher over union’s Israel-Palestine policies fails – Robert Kellar

  1. Has this summary, or the tribunal, accurately characterised the ‘religion’ component in relations between Israel and individual Jews wherever resident? The Israel dimension can be separated into a religious concept ‘Land of Israel’ and our ordinary perception of nation, here the State of Israel. However they obviously overlap, as they do, for example, in the case of Mecca, the obligatory topographical destination of the obligatory, for Muslims, hadj and the Saudi state. Beyond question, a number of distinctly religious duties, practices, concepts etc connect ‘Land of Israel’ to an individual Jew, whether or not that individual acts on all, some or none.The PA has added to these considerations an unmistakably ‘anti-Jewish’ rather than anti-Israeli feature, by barring, not ‘Israelis’ but ‘Jews’ from its supposed territories. Doesn’t this complicate ‘political’ support of the ‘Palestinian’ side in these messy quarrels? One can agree that elements of the complaint are feeble -antagonism to some State of Israel policy cannot be simply morphed into anti-semitism- but has the tribunal (or the post) faced up to, or has it ducked, all the main and valid arguments here?

  2. Fascinating case but I’d dispute your view that the Tribunal has narrowed the scope of protected characteristics. The crux of your argument seems to come here:

    ‘However, if repeated and intemperate criticism of secular policy issued by the Vatican “relates to” Catholicism, why should similar criticism of policy issued by the Jewish state not “relate to” the Jewish community?’

    I’m not aware that the Jewish faith is in any way determined by Israeli state policy, whereas the Vatican combines a spiritual and a secular role in a way that makes it harder to distinguish the two dimensions.

    The converse of your argument is that a Jew who opposes the state of Israel may in some way be less ‘Jewish’ than one who supports it wholeheartedly. I’m sure this isn’t what you intend but I feel that the Tribunal made the right decision by robustly separating the protected, faith-based, characteristic from the non-protected political dimension.

  3. Jonathan –

    I agree with you but think that you’re interpreting the word ‘Zionism’ in a different sense to that used by the tribunal (I agree with your definition, for what it’s worth, but get the impression that the tribunal takes a different tack).

    A lot of ‘hardline’ pro-Israel campaigners such as Mr Fraser and the Zionist Federation make it a point of honour to support Israeli government policy no matter what. They see this as an intrinsic part of Zionim and routinely reject people and organisations as non-Zionist if they make a habit of criticising Israel (eg. http://www.thejc.com/news/uk-news/103173/yachad-zf-acting-zionist-police), regardless of their basic view on whether or not Israel has a right to exist – which is the criterion I would consider to be the crucial division between Zionists and non-Zionists.

    Obviously this ‘enhanced Zionism’ – never speaking ill of the Israeli government – is not an intrinsic part of Jewishness; there are plenty of Jews who speak out against Israeli government policy, including much of the Israeli population.

    And I think, although this is just my interpretation, that the tribunal made exactly this point. It was Mr Fraser’s political views on current Israeli policy (boycotts, settlements and the rest of it) that were at issue, and it was on those that the tribunal ruled. Not the best-expressed judgement but I think this was its meaning and if so, I fully agree with it.

    G

  4. The best way for a member of a union which engages in anti-Israel rhetoric is to ignore it. You don’t have to boycott anybody just because the Union says so. It does not speak for you. Boycotting is an individual choice; not one imposed by the government, the council, your employer (even if you are public-sector), the union or anybody else. If you are an academic maintain contacts with Israeli academics – colleagues who do not want to mix with them need not.

    Or does anybody think boycotting should be enforced collectively and if so by whom?

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