The case of Fraser v University and College Union concerned a number of claims of harassment by the Claimant against the Respondent union of which he was a member, under section 57 of the Equality Act 2010. The complaints were based on or stemmed from motions debated at the Respondent’s Congress (annual conference) in the years 2007 to 2011 on proposals for a boycott of Israeli academic institutions

In the tribunal’s words, the Claimant’s dissatisfaction with the Respondents’ handling of this “now finds expression in this enormous piece of litigation in which he charges the Respondent with “institutional anti-Semitism” which, he says, constitutes harassment of him as a Jew” (para 3).

After a 20-day hearing, a 23-volume trial bundle, 23 witnesses for the Claimant and 5 for the Respondent, an employment tribunal dismissed all the claims, finding all but one to be “manifestly unmeritorious” (para 169) and that other to be “clearly unsustainable…[and] hopelessly out of time…in any event” (para 177).

The judgment promulgated on 22 March 2013 (available here) is very lengthy, running to 182 paragraphs over 45 pages, and of course does not have any binding effect.  Nonetheless the following points may be of some interest:

• The tribunal said there is no such thing as “institutional responsibility”, the statutory provisions being limited to fixing employers and principals only with vicarious liability for the acts of their employees and agents. It said that the Claimant’s claim to hold the Respondents liable for harassment said to result from the conduct of fellow-members of the union (not acting as agents) or from motions passed by Congress was wholly untenable (paras 22, 25 and 151)

• The tribunal found that “a belief in the Zionist project or an attachment to Israel or any similar sentiment cannot amount to a protected characteristic”. It said this is not intrinsically a part of Jewishness and it was not open to the Claimant to rely upon what might be termed a “sub-characteristic” (para 150).

• The tribunal considered that the behaviour of the Respondents (rather than that of pro-Palestinian activist fellow-members) was both constitutional and unobjectionable, was not related to the Claimant’s protected characteristic of race or religion or belief, and did it have the effect of violating the Claimant’s dignity or creating the necessary adverse environment for him (paras 152-154)

• In any event, the tribunal said (with reference to section 26(4)(c) of the 2010 Act) that it would not have been reasonable for the matters complained of to have had that effect as the Claimant was a political campaigner who had elected to engage in and persist with a political debate which is bound to excite strong emotions, so it would require special circumstances to justify a finding that such involvement had resulted in harassment (para 156). Further, if the case were marginal (which the tribunal said it certainly was not), the narrow interests of the Claimant would have to give way to the wider public interest in ensuring that freedom of expression is safeguarded (para 156).

The final paragraphs of the decision read as follows:

“178…We greatly regret that the case was ever brought. At heart, it represents an impermissible attempt to achieve a political end by litigious means. It would be very unfortunate if an exercise of this sort were ever repeated.

179. We are also troubled by the implications of the claim. Underlying it we sense a worrying disregard for pluralism,tolerance and freedom of expression, principles which the courts and tribunals are, and must be, vigilant to protect (for a recent example, see Smith-v-Trafford Housing Trust [2012] EWHC 3221 (Ch)). The Claimant and his advisors would have done well to heed the observations of Mr Beloff and Mr Saini concerning the importance which the law attaches to political freedom of expression.

180. What makes this litigation doubly regrettable is its gargantuan scale. Given the case management history, the preparations of the parties and the sensitivity of the subject-matter, we thought (rightly or wrongly) that it was proper to permit the evidence to take the course mapped out for it, provided that the hearing did not overrun its allocation. But we reminded ourselves frequently that, despite appearances, we were not conducting a public inquiry into anti-Semitism but considering a legal claim for unlawful harassment. Viewed in that way, a hearing with a host of witnesses, a 20-day allocation and a trial bundle of 23 volumes can only be seen as manifestly excessive and disproportionate. The Employment Tribunals are a hard-pressed public service and it is not right that their limited resources should be squandered as they have been in this case. Nor, if (contrary to our view) it was proper to face them with any claim at all, should the Respondents have been put to the trouble and expense of defending proceedings of this order or anything like it.”

Paul Greatorex