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Trinity Mediator & Arbitrator Michael Malone's Analysis of Equality & Human Rights Commission Labour Party Report


Former Employment law judge and now Mediator and Arbitrator at Trinity barristers, Michael Malone has prepared the following analysis of the recently published Equality and Human Rights Commission (EHRC) report on the formal investigation into the Labour Party. The report, which can be downloaded here, contains a number of points that will be of particular interest to employment lawyers and solicitors:

The report by the Equality and Human Rights Commission (ECHR) on its formal investigation into the Labour Party and the acceptance of the report by that Party have received a good deal of publicity.

The purpose of this note is to look at the legal analysis which underpinned the findings and the potential implications for other organisations. The report shows how organisations can be held responsible for acts of discrimination and harassment by their agents; and how failures in operating a complaints procedure can amount to indirect discrimination.

There were three findings in the unlawful act notice which was served on the party.

The first finding was that the party committed unlawful harassment of its members related to race (Jewish ethnicity) through the acts of two named agents, Ken Livingstone and Pam Bromley.

The second was that the party practised a policy of political interference in antisemitism complaints, amounting to unlawful indirect discrimination against its Jewish members.

The third was that the party had a policy or practice, prior to August 2020, of failing to provide adequate training to those handling complaints of antisemitism; and that this policy or practice  amounted to unlawful indirect discrimination against its Jewish members.

The second and third findings were made in relation to complaints about acts of antisemitism committed by members of the party, whether or not those members could be regarded as acting as ‘agents’ of the party when committing them.

In order to make these findings, it was necessary for the EHRC expressly or implicitly to answer the following questions:

1 Did statements made by Mr Livingstone in broadcast interviews and by Ms Bromley on Facebook fall within the legal definition of harassment, even though they did not specifically refer to any member of the party or indeed any other named individual?

2 If there were unlawful acts of harassment by Mr Livingstone and Ms Bromley, were those acts also to be treated as done by the Labour Party, on the ground that they were acting as agents of the party?

3 Although it is obviously undesirable that there should be political (or any) interference with a prescribed complaints procedure, on what basis does such interference amount to indirect discrimination?

4 Is it relevant that some of the political interference was positive, in the sense of pushing for action to be taken on particular complaints?

5 On what basis can a practice of not doing enough, in this case not providing adequate training, amount to indirect discrimination?

The statutory framework

It’s necessary to start by outlining the relevant provisions of the Equality Act 2006 (the EA 2006) and the Equality Act 2010 (the EA 2010) before addressing the five questions.

An association, for the purposes of the EA 2010, is defined in s 107(2). It is an association of persons which has at least 25 members; and admission to membership is regulated by its rules and involves a process of selection. The definition can include but is not limited to a political party.

Under s 101(2) of the EA 2010 an association must not discriminate against a member (a) in the way in which it affords the member access to a benefit, facility or service or by not affording access or .....(d) by subjecting the member to any detriment. Under s 101(4) an association must not harass a member. The standard definitions of direct discrimination (s 13), indirect discrimination (s 19) and harassment (26) apply.

Under s 109(2), anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal. It does not matter whether it is done with the principal’s knowledge or approval (s 109(3)). The reasonable steps defence for employers under s 109(4) does not apply to the principal/agent relationship. The offending agent is also generally liable (s 110(1)).

The provisions in the EA 2006 relating to formal investigations by the EHRC are remedial rather than punitive or compensatory. An unlawful act notice may require the recipient to prepare an action plan to avoid repetition or continuation of the unlawful act (s 21(4)). A person on whom an unlawful act notice is served may appeal (in the case of alleged breaches of s 101 of the EA 2010 to a county court) on the ground that they have not committed the unlawful act or on the ground that a requirement for the preparation of an action plan is unreasonable (s 21(5)). In this case the right of appeal appears to be academic, in view of the Labour Party’s acceptance of the report.

Question 1 - harassment of unspecified individuals

Undoubtedly most claims of harassment which reach a court or tribunal involve allegations that the claimant has been directly targeted by the words or actions of the alleged harasser. However there is nothing in the s 26 definition to limit claims in that way. The EHRC considered whether the comments made by Mr Livingstone and Ms Bromley were unwanted conduct, whether they were related to ethnicity and whether they created an intimidating, hostile, degrading, humiliating or offensive environment for members or prospective members of the party, particularly those who were Jewish. Those were the relevant considerations, following the wording of s 26. There was no requirement to find an intention to create such an environment. It was sufficient that the comments were found to have that effect.

There was however a further consideration. In relation to both Mr Livingstone and Ms Bromley the EHRC took into account their rights to freedom of speech under Article 10 of the European Convention on Human Rights (ECHR). It was noted that those rights were relevant, for example, when Labour Party members made legitimate criticisms of the policies of the government of Israel. The comments in question were however found to have gone beyond the bounds of Article 10 protection. The reason was that the ECHR does not protect racist speech that negates its fundamental values. Furthermore the Article 10 rights are not absolute. In particular, the right of freedom of expression must be weighed against the protection of the reputation or rights of others.

It should be noted that words or actions by an agent of a political party (or other association or organisation) which satisfy the s 26 definition of harassment in relation to a number of  members or employees who are not expressly named or otherwise identified could lead to multiple claims against the agent and the principal, provided that any relevant limitation period is satisfied or extended.

Question 2 - the agency question 

The legal principles are clear. It is not necessary to show that the harasser has been given authority to commit the act of harassment itself. That would be unusual and there is no suggestion that it happened in this case. The question is whether the relevant act was done or the relevant statement was made in circumstances in which the harasser had express or implied authority to act or speak on behalf of the principal.

One of the authorities referred to in the EHRC report is Unite the Union v Nailard  [2018] IRLR 730. The claimant, employed by the union as a regional officer, complained of sexual harassment by a convenor and branch chair who had been elected by members of the workforce to carry  out union duties but who were not employed by the union. A union investigation upheld her complaint but the union failed to deal with the matter effectively. The Court of Appeal upheld an employment tribunal finding that the two lay officials were acting as agents of the union and that therefore the union was liable.

It was argued on the union’s behalf that the agency principle did not apply because the authority of the two lay officials extended only to dealings with third parties (such as the employer) - not to dealings with members or officials of the union. That argument was rejected. In a graphic phrase, Underhill LJ said: ‘An agent may stand in the shoes of of the principal in dealing with A, but if while wearing them he treads on B’s toes I see no good reason why he should not be liable just as much as if it had been A’s toes that were crushed’.

Although the principle is clear, it can be very difficult to apply it in practice. The EHRC appears to have given the question a great deal of careful consideration. The agency principle was found to apply only in the two cases of Mr Livingstone and Ms Bromley. The EHRC also identified 18 ‘borderline’ cases, involving local councillors, local election candidates and constituency office holders, where there was not enough evidence to show that they were acting as agents of the party in making the relevant statements; or where the EHRC was not satisfied that the harmful effects of the person’s conduct were sufficient to outweigh their freedom of expression rights. There were also many examples of antisemitic conduct by ‘ordinary’ members of the party who did not hold any office or role.

It was noted in the report that Mr Livingstone was a member of the NEC at the relevant time and that the Labour Party accepted that he was acting as its agent in the specific cases identified. The party did not accept, however, that Ms Bromley was acting as an agent of the party, when posting her comments on Facebook. The party contended that it is liable for the acts of its local councillors only when they are carrying out the responsibilities given to them by the party’s Rule Book. The EHRC however took the view that Ms. Bromley was at the relevant times acting within her express or implied authority as a Labour Party local councillor.

The findings, particularly that in respect of Mr Livingstone, unchallenged by the party, highlight the potential  exposure of organisations in general to liability for acts of discrimination or harassment by individuals who could be deemed to be acting as agents - elected or appointed officers of political parties, non-executive directors of companies, lay officials of unions, trustees of clubs, charities and associations. In Nailard, Underhill LJ commented on the unavailability of the reasonable steps defence in relation to agents - ‘which is on the face of it rather surprising’.

Question 3 - political interference as indirect discrimination

The EHRC found, in 23 out of 70 files which were examined, evidence of interference by the Leader of the Opposition’s Office (LOTO) or by the leadership in the investigation of complaints of antisemitism. There was a formal procedure under which LOTO had no role. The cases of political interference occurred during the period from March 2016 to May 2019. In March and April 2019 there was an express policy of referring complaints to LOTO.

It has always been good practice for complaints of discrimination to be thoroughly and fairly investigated, without inappropriate interference, but can failures in this regard be treated as acts of unlawful discrimination? There are four relevant criteria. Was there a policy or practice of (in this case) political interference in the complaints procedure? Did that policy or practice put some or all of the complainants at a disadvantage? Did it put complainants of a particular ethnic group (in this case Jewish complainants) at a particular disadvantage? Was the policy or practice a proportionate means of achieving a legitimate aim?

The evidence found in the files, as mentioned above, showed that there was a policy or practice of political interference, sustained over a lengthy period. The EHRC considered that it placed complainants at a disadvantage, because it caused a lack of transparency and consistency in the complaints process and a risk that complaints would not be handled fairly, as well as actual different treatment (reasonably perceived to be detrimental) in some cases - where for example the risk of reputational damage to the party was given priority.

There were two aspects to the third question, that of particular damage. First, there was some evidence that LOTO was consulted on other types of complaint, such as sexual harassment, but this did not appear to have been as extensive or systematic as the political interference in antisemitism complaints. Secondly, although moral outrage could cause non-Jewish members of the party to complain of antisemitism, Jewish members were proportionately more likely to complain because they were directly affected.

On the final question, there was no legitimate aim, or proportionate means, because there was no good reason for LOTO staff to become involved in decision making in antisemitism complaints, outside the complaints process.

Question 4 - instances of ‘positive’ interference

The EHRC accepted that the involvement of LOTO staff in some cases was to press for action to be taken. How could that be to the complainant’s disadvantage?

The EHRC took the view that the inappropriateness of political interference in antisemitism complaints is not necessarily about the particular outcomes. It is, rather, about the contamination (and/or appearance of contamination) of the process.

Arguably there could have been no finding of disadvantage to complainants if every single intervention had been a request to deal with the complaint thoroughly and expeditiously. Where, however, some interventions are of that nature and others have a contrary effect, it is impossible to say that the former cancel out the latter.

Question 5 - inadequate training

The EHRC found that the Labour Party had failed to comply with recommendations in the 2016 Chakrabarti report (and subsequent documents) regarding practical training on how to handle complaints of antisemitism. The party provided academic education rather than the practical training which was required. This amounted to indirect discrimination against Jewish members of the party.

However the discrimination ended in August 2020, when the party formally committed to provide proper training, acceptable to Jewish community stakeholders, for those handling antisemitism complaints. It was recognised that engagement with Jewish stakeholders could not happen in practice before the publication of the EHRC report and accordingly the failure to provide the training has been objectively justified since August 2020. However the party was expected to have the practical training in place within six months after the publication of the EHRC report.

It is obviously good practice for any organisation to give equal opportunities training to its employees and agents; and also to give additional training to employees or agents who are charged with investigating complaints of discrimination or harassment. But can inertia, in not providing adequate training to the latter, amount in itself to an indirectly discriminatory policy or practice?

A special feature which was identified by the EHRC was the contrast with the comprehensive training scheme for those investigating complaints of sexual harassment. However this may not have been an essential ingredient of the finding of indirect discrimination. Arguably it was sufficient that the party had a policy of providing practical training but a practice of not doing so. That practice was to the detriment of members who complained of antisemitism, because it made it less likely that their complaints would be properly dealt with; and it was to the particular disadvantage of Jewish members, because they were the members who were most likely to have cause to complain of antisemitism.

Conclusions

The law on liability for discrimination and harassment by agents was already clear. So too was the unavailability of the defence that all reasonable steps to prevent the discrimination or harassment had been taken. But the EHRC report illustrates how serious the consequences can be. Also the  difference of opinion about responsibility for Ms Bromley’s actions and the large number of borderline cases identified show that it can be no easy matter to identify those who are acting as agents and those who are not.

The findings of indirect discrimination in relation to political interference in the investigation of complaints of antisemitism and in relation to the failure to provide adequate practical training for investigators may come as a surprise to many, but the legal analysis which underpins the findings does not appear to have any obvious flaws. The lesson for all organisations is that it is not sufficient to have good policies on paper for investigating and dealing with complaints of discrimination or harassment. It is also essential to have a procedure which is properly resourced and truly independent, with adequate practical training for all those involved in carrying out investigations or making decisions.

For any queries regarding Trinity Chambers’ Employment barristers or employment law related Alternative Dispute Resolution (ADR), mediations or arbitrations, contact Steve Walker or Paul McNab in the civil clerking team.

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