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

16 April 2013 by Guest Contributor

Mr 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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