On 22 December 2022, the Employment Tribunals (Scotland) (the ‘Tribunal’) unanimously concluded that the discrimination and harassment claims of a Ministry of Defence employee (the ‘Claimant’), which he grounded upon his male sex, white race and lack of belief in critical theory (a philosophical movement which challenges existing power structures), were not well-founded. The Tribunal, led by Judge P O’Donnell, found that the actions complained of could not be said to be motivated by the Ministry of Defence’s knowledge of the Claimant’s non-belief in critical theory. Such actions therefore could not be said to amount to direct discrimination under the Equality Act, 2010 (the ‘Equality Act’).
The Tribunal further found that, although those actions did amount to “unwanted conduct” under the Equality Act, that conduct did not (either individually or as a whole) have the purpose or effect of violating the Claimant’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant, and was not related to his race, sex or lack of philosophical belief. Such conduct therefore could not be said to amount to harassment under the Equality Act. The claims were accordingly dismissed.
The Claimant’s discrimination arguments included a submission that the investigation and disciplinary process to which he was subjected following his making of offensive comments on the Ministry of Defence’s intranet page (which led to complaints from other staff) amounted to direct discrimination. The Tribunal found that the Claimant failed to meet the burden of proof in this regard, as he had not shown that any other comparator – or any other person “subject to complaints that their comments posted on internal blogs had caused offence to other staff but who did not share the Claimant’s lack of belief in critical theory” – would have been treated differently.
The Tribunal arrived at a similar conclusion in respect of another discrimination argument raised by the Claimant – namely, that the Ministry of Defence’s (in his view, unsatisfactory) handling of his complaint in relation to its diversity and inclusion policies amounted to direct discrimination. The Tribunal found that the Claimant had not proven that a person raising a similar complaint (but who did not share the Claimant’s non-belief in critical theory) would have been treated differently. The Tribunal therefore dismissed the claims of direct discrimination.
The Claimant’s harassment arguments were grounded upon seven actions (which included the publication by the Ministry of Defence of diversity and inclusion papers/communications, and the raising of complaints by other Ministry of Defence staff against the Claimant). The Tribunal relied upon Moonsar v Fiveways Express Transport Ltd [2005] IRLR 9 EAT in coming to the conclusion that all seven actions, including the six not specifically directed towards the Claimant, amounted to “unwanted conduct” for the purposes of the Equality Act. However, the fact that all actions bar one were “corporate matters being decided upon by people at some distance from the Claimant and with no knowledge of him or his protected characteristics” was relevant to the Tribunal’s finding that none of this unwanted conduct had the (prohibited) purpose or effect of violating the Claimant’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. In assessing the effect of the unwanted conduct, the Tribunal also had regard to the Claimant’s pre-existing “immoderate” views on matters of diversity and inclusion. The Tribunal, in considering that “even in the broadest sense” the unwanted conduct in question could not be said to relate to the Claimant’s protected characteristic - his non-belief in critical theory – therefore dismissed the claims of harassment.
As a general point, the Tribunal noted its view that the Claimant was in fact seeking a judicial inquiry into the nature of the Ministry of Defence’s diversity and inclusion programme, rather than the determination of a specific set of issues – but noted that this broader remedy did not fall within its jurisdiction.
Click here for the judgment in Mr D Powell v Advocate General for Scotland Representing the MOD and Advocate General for Scotland Representing the Cabinet Office (Employment Tribunal Decision, Case Number 4102915/2022).