Defeat for man with mission to prove he is victim of lecturers' antisemitism
For background see ‘Academic Friend of Israel’ sues his union for hurt caused by vote on defining antisemitism,
For brief reports of the Tribunal ruling, see items 1, 2 or 3; for one of the resolutions at issue see 4, for excerpts of the Tribunal judgment, see 5.
1) UCU: Right to advocate boycott of Israel upheld;
2) BRICUP: Union defeats legal challenge alleging antisemitism;
3) Electronic Intifada: Crushing defeat for Israel lobby as anti-boycott litigation fails in UK
4) UCU: Resolution on Boycott of Israeli Academic Institutions ;
5) Employment Tribunal; excerpts
Ronnie Fraser
UCU cleared of harassment in landmark tribunal: right to advocate boycott of Israel upheld
Media release from UCU
25 March 25, 2013
An Employment Tribunal has found in favour of UCU on all ten complaints of harassment brought by a UCU member who opposed the union’s policy on Palestine.
Anthony Julius, lawyer for the Complainant and chairman of the board of the Jewish Chronicle
The claimant had been supported in his claim by leading lawyer Anthony Julius. In giving their reasoning the Tribunal stated that ‘the proceedings are dismissed in their totality’ and ‘we greatly regret that the case was ever brought. At heart it represents an impermissible attempt to achieve a political end by litigious means.’
The Tribunal also described themselves as troubled by the implications of the claim, stating that ‘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’.
While witnesses for UCU were described in the tribunal’s decision as ‘careful and accurate’, some witnesses for the claimant were described as appearing to ‘misunderstand the nature of the proceedings and more disposed to score points or play to the gallery rather than providing straightforward answers to the clear questions put to them’.
John Mann MP and former MP Denis MacShane were collectively described as giving ‘glib’ evidence, while testimony of another key witness for the claimant was described as ‘extraordinarily arrogant but also disturbing’.
UCU general secretary Sally Hunt [above] said: “I am delighted that the Tribunal has made such a clear and overwhelming judgement in UCU’s favour. There are many different views within UCU and wider society about Israel and Palestine and this decision upholds our and others’ right to freedom of expression and to continue to properly debate these and other difficult questions.
“This has been an extremely difficult period for the UCU staff and members involved in defending the union’s position and I am especially pleased therefore that the Tribunal found our witnesses to be careful and accurate.
“The claimant, while unsuccessful, of course had the right to challenge the union in the courts and will be treated with respect within the union as will his views on this question. Now that a decision has been made I hope in turn that he, and others who share his views, will play an active part in the union and its debates rather than seek recourse to the law.
“For our part, UCU will look at our own processes to see if improvements can be made in line with the advice given to us within the decision. We remain opposed to discrimination of any kind including anti-Semitism and we will work with energy and determination with all who will work with us to oppose it in the workplace and society at large.”
Union defeats legal challenge alleging antisemitism
Anthony White, counsel for UCU
* Judgment says that complainant was trying to use the law for political purposes
* Employment Tribunal result hailed as important victory by pro-Palestinian groups
Media release by BRICUP (British Committee for the Universities of Palestine)
March 26, 2013
BRICUP today welcomed the outcome of the Employment Tribunal (ET) case brought by Ronnie Fraser against his union, the University and College Union (UCU). The former college teacher’s claim of institutional antisemitism on the part of the union was thrown out comprehensively.
“Fraser vs. UCU” was viewed by activists as a test case for all UK unions’ right to advocate boycott of Israeli universities and products, and firms that operate in the Occupied Palestinian,Territory. It also has important implications for free speech on Palestine and Israel on university campuses.
In the two-week hearing at Kingsway ET last November, Fraser had alleged that he was treated unfairly and with hostility during union debates about academic boycott, and about the decision not to use a contentious ‘working definition of antisemitism’ that conflated antisemitism with criticism of Israel.
Fraser’s case was argued by Anthony Julius, the lawyer who handled Princess Diana’s divorce, and author of a recent book on antisemitism. His numerous witnesses included the disgraced former MP Denis MacShane.
Summing up for Fraser, Mr. Julius argued that the ‘attachment to Israel’ of many Jews in the UK constitutes a ‘protected characteristic’ under the Equality Act 2010. If the Tribunal had agreed with him, open discussion of Israeli policies – whether in the unions or in the media – would have become almost impossible.
Fraser agreed that he had been able to speak in UCU’s boycott debates but claimed that his speeches at UCU’s Annual Congress were not applauded because of antisemitism on the part of fellow delegates. But UCU’s Counsel, Antony White QC, showed that other Jewish speakers, both for and against the boycott motions, had been applauded.
All ten of Fraser’s claims were thrown out by the ET. The judgment says “we greatly regretthat the case was ever brought. At heart it represents an impermissible attempt to achieve a political end by litigious means”.
The tribunal received a letter signed by 58 Jewish members of UCU who said that they held differing views about academic boycott, but all agreed that their union was not antisemitic.
Fraser is the founder and director of the pressure group Academic Friends of Israel and a member of the Board of Deputies (BoD) of British Jews. The hearing revealed the extent to which pro-Israel lobby groups had attempted to interfere with UCU’s policies and decision-making. In his evidence Fraser admitted that “the Friends of the various Israeli University groups” had donated £70,000 tothe Fair Play Campaign Group, set up by the BoD andthe Jewish Leadership Council to coordinate activity against boycotts of Israel. Fraser further alleged that the Fair Play Campaign Group in turn had given £50,000 to Engage, an organisation campaigning against academic boycott. Fraser and his witnesses admitted under cross-examination that in 2007 he withdrew a Congress motion on antisemitism after pressure from the BoD, the Jewish Leadership Council and Engage
Tom Hickey, a senior member of UCU’s National Executive Committee, said: “This is a landmark judgment. The accusation of antisemitism against UCU because it supports a boycott of Israel is absurd. Its record in fighting racism, including antisemitism, is second to none in the trade union movement. Had this vacuous charge been upheld, unions and universities would have been silenced on the key moral issue of the century”.
According to Professor Jonathan Rosenhead of the British Committee for the Universities of Palestine (BRICUP) “The Fraser case against UCU has now been shown up clearly for what it was, an attempt to shut down legitimate debate about Israel. The Israelis have a word for it – ‘lawfare’. It isn’t working.”
Notes for editors
UCU, the University and College Union, represents approximately 120,000 academic and academic-related staff in Further and Higher Education in the UK. UCU was formed in June 2006 by the amalgamation of the Association of University Teachers
(AUT) and the National Association of Teachers in Further and Higher Education (NATFHE).
“Fraser further alleged that the Fair Play Campaign Group in turn had given £50,000 to Engage” – it should be noted that some of Fraser’s witnesses contradicted him on this point.
Please note that while the people quoted above are members of UCU, they do not claim to speak for UCU, only for BRICUP. BRICUP has not yet had sight of the full Judgment from the ET so all comments are based on what is already in the public domain.
BRICUP, BM BRICUP, London WC1N3XX, email: bricup@bricup.org.uk, www.bricup.org.uk
Crushing defeat for Israel lobby as anti-boycott litigation fails in UK
By Asa Winstanley, Electronic Intifada
March 26, 2013
A British judge comprehensively dismissed a high-profile legal attack on the University and College Union, it emerged on Monday. The case was brought after democratic union bodies discussed boycotts of Israel.
An Employment Tribunal ruled the claim of “institutional anti-Semitism,” brought by union member and Academic Friends of Israel director Ronnie Fraser, was dismissed on all counts.
The ruling is a dramatic and comprehensive defeat for the Israeli “lawfare” strategy, and may even have backfired for its proponents who today descended into acrimonious internal back-biting.
“Political end by litigious means”
In the 49-page ruling, the three-person tribunal comprehensively considered the 10 points of the detailed complaint, brought on behalf of Fraser by high-profile pro-Israel lawyer Anthony Julius.
After dismissing each one of them in detail (“without substance … devoid of any merit … palpably groundless … untenable … obviously hopeless”), the document appears to foreclose the possibility of another such “lawfare” attack ever being brought to court again (at least using UK Tribunals).
“Lessons should be learned from this sorry saga. 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” (paragraph 178, my emphasis).
It is this key passage of the ruling that means anti-Palestinian activists may rue the day they ever contemplated “the wreckage of this litigation,” as the judge frankly puts it (para. 181).
The judge raises serious concerns that a “hard-pressed” public service like the Tribunals should have “their limited resources … squandered [by Fraser] as they have been in this case.” Nor “should the Respondents [the union] have been put to the trouble and expense of defending proceedings of this order or anything like it” (para. 180).
Another important finding is that “a belief in the Zionist project or an attachment to Israel … cannot amount to a protected characteristic” under the Equality Act of 2010. This properly sets a clear red line between Zionism and Judaism (or Jewish identity).
Julius’s competence was also called into doubt by the panel, after he “referred in support of his argument to a concept unfamiliar to us and not, so far as we are aware, known to our law, namely ‘institutional responsibility’ ” (para. 22).
“Preposterous” claims
The panel was also “troubled by the implications of the claim. Underlying it we sense a worrying disregard for pluralism, tolerance and freedom of expression” (para 179). This is clearly a reference to (among others) Jeremy Newmark, a witness for Fraser, and the head of the Jewish Leadership Council.
He once said the union was “no longer a fit arena for free speech” – this is described by the judge as “extraordinarily arrogant but also disturbing.”
The judge also found that parts of Newmark’s evidence before the tribunal were “preposterous” and “untrue.” Testimony by Jane Ashworth, of the anti-boycott group Engage, was also found to be false.
Two members of parliament who appeared as witnesses for Fraser were also criticized. John Mann MP and Denis MacShane MP “clearly enjoyed making speeches. [But] neither seems at ease with the idea of being required to answer a question not to his liking” (para. 148).
While there is some minor criticism of the union on procedural grounds, in the main there is mostly praise. Of the witnesses called by the union, the judgment says “we found all of them careful and accurate” (para. 149).
The panel “spent an entire day” listening to recordings of union debates in Congress (its annual decision-making conference which regional delegates are sent to): “In our judgment, the proceedings were well-ordered and balanced.”
Fraser’s case had alleged union debates that discussed the issue of boycotting Israel were systematically biased against him on the basis of his Jewishness. In fact, the judge found that Jewish union members spoke on both the pro- and anti-boycott sides of debates, which were “managed in an even-handed fashion.”
Implications
The verdict is a comprehensive defeat for Israel’s lawfare project, supporters of Israeli war crimes and assorted Zionist fanatics in the UK.
There were early signs today of internal fallout, as the recriminations began.
Writing on Facebook, leading Engage figure, and witness in the case David Hirsh accused the verdict itself of being anti-Semitic: “That which Ronnie experiences as antisemitism is what the Tribunal finds to be precisely the right and courageous way to treat him.”
Commenting on the same post, two Zionist activists then fall out, giving their competing analyses of what went wrong. David Toube of the Islamophobic, pro-Israel, pro-war blog Harry’s Place advocated the idea (anti-Semitic in itself) that Jews should get out of Britain: “I recommend that Jews who want to stand and fight against antisemitism, emigrate to Israel.”
But Jonathan Hoffman, formerly a leading figure at the Zionist Federation, tried to look on the bright side: “maybe it is useful as a staging post – for example to a change in the law or to a [sic] radical rethink in Jewish Community organization.”
The union’s general secretary Sally Hunt said in a press release: “I am delighted that the Tribunal has made such a clear and overwhelming judgment in UCU’s favor. There are many different views within UCU and wider society about Israel and Palestine and this decision upholds our and others’ right to freedom of expression and to continue to properly debate these and other difficult questions.”
UCU Resolution on Boycott of Israeli Academic Institutions
UCU conference
May 2007
30 – Composite: Boycott of Israeli Academic Institutions (University of Brighton, Grand Parade; University of East London, Docklands)
Congress notes that Israel’s 40-year occupation has seriously damaged the fabric of Palestinian society through annexation, illegal settlement, collective punishment and restriction of movement.
Congress deplores the denial of educational rights for Palestinians by invasions, closures, checkpoints, curfews, and shootings and arrests of teachers, lecturers and students.
Congress condemns the complicity of Israeli academia in the occupation, which has provoked a call from Palestinian trade unions for a comprehensive and consistent international boycott of all Israeli academic institutions.
Congress believes that in these circumstances passivity or neutrality is unacceptable and criticism of Israel cannot be construed as anti-semitic.
Congress instructs the NEC to
● circulate the full text of the Palestinian boycott call to all branches/LAs for information and discussion;
● encourage members to consider the moral implications of existing and proposed links with Israeli academic institutions;
● organise a UK-wide campus tour for Palestinian academic/educational trade unionists;
● issue guidance to members on appropriate forms of action.
CARRIED AS AMENDED
EXCERPTS
Case Number: 2203290/2011
Employment Tribunals between Claimant Mr R Fraser and Respondents University College Union
REASONS FOR THE RESERVED JUDGMENT SENT TO THE PARTIES ON 22 MARCH 2013
38 Central to the objective test is the question of gravity. Statutory protection from harassment is intended to create an important jurisdiction. Successful claims may result in very large awards and produce serious consequences for wrongdoers. Some complaints will inevitably fall short of the standard required. To quote from the judgment of Elias LJ in Land Registry–v–Grant [2011] ICR 1390 CA (para 47):
Furthermore, even if in fact the disclosure was unwanted, and the Claimant was upset by it, the effect cannot amount to a violation of dignity, nor can it properly be described as creating an intimidating, hostile, degrading, humiliating or offensive environment. Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment. The Claimant was no doubt upset … but that is far from attracting the epithets required to constitute harassment. In my view, to describe this incident as the Tribunal did as subjecting the Claimant to a ‘humiliating environment’ … is a distortion of language which brings discrimination law into disrepute.
At para 51, the Lord Justice added this:
I do not think that a Tribunal is entitled to equate an uncomfortable reaction to humiliation.
……
47 Mr White also drew our attention to a judgment of Mr JP Scott, Sheriff given at Edinburgh on 8 April 2010 in the case of Procurator Fiscal-v–Napier & Others [013/4553]. The five accused, all members of the Scottish Palestine Solidarity Campaign, disrupted a performance by the Jerusalem String Quartet at the Edinburgh Festival in 2008, making comments such as, “They’re Israeli army musicians”, “Genocide in Gaza” and “Boycott Israel”. They were charged with pursuing a racially aggravated course of conduct which amounted to harassment or alternatively acting in a racially aggravated manner. Unlike the instant case, the racial basis for the charges was not said to be Jewishness but Israeli nationality. The Sheriff dismissed the charges, holding that the prosecution must be content with a charge of breach of the peace (to which there was no apparent answer). On the subject of freedom of expression, he remarked (para 46):
And if persons on a public march designed to protest against and publicise alleged crimes committed by a State and its army are afraid to name that State for fear of being charged with racially aggravated behaviour, it would render worthless their Article 10(1) rights. Presumably their placards would have to read, “Genocide in an unspecified part of the Middle East”; “Boycott an unspecified State in the Middle East”, etc.
51 So long and terrible has been the persecution of the Jewish people through history that much learning has developed on the subject. The study of anti- Semitism has to an extent acquired its own terminology (for example, stereotypes tend to be referred to as ‘tropes’). Naturally, scholars in this discipline, as in any other, disagree. There is even a debate, which raises serious points, about how the term ‘anti-Semitism’ should be spelt. One controversial question much explored in this case is whether, and if so in what circumstances, criticism of the actions and policies of the modern State of Israel can properly be regarded as anti-Semitic. At one extreme, such criticism could be seen as intrinsically anti-Semitic simply because Israel is the Jewish State. The polar opposite view is that the actions and policies of a state are by their nature political, and accordingly criticism of acts by or at the behest of the Israeli government and institutions cannot be anti-Semitic. Between lie many intermediate positions. For some sympathetic to Israel, what is seen as disproportionate or excessive attention to the Israel/Palestine conflict may constitute or evidence anti-Semitism, conscious or unconscious. For others, the determining factor is the tone or content of the language used, in particular where what are seen as anti-Semitic tropes are employed. Many sympathetic to the Palestinian cause, while not excluding the possibility that some criticism of Israel may be actuated by anti-Jewish prejudice, complain that the charge of anti-Semitism is largely raised as a device to distract attention from injustices (as they see them) perpetrated in the name of Israel. Among the vast field of witnesses on the Claimant’s side, there was an interesting spread of opinions on where the line is, or should be, drawn. So, to take one of many examples, Mr Whine of the Community Security Trust, an organisation which provides security, training and advice for British Jews, did not consider that comparisons between Israel and apartheid South Africa were inherently anti-Semitic, whereas the Claimant did.
52 The obvious difficulty confronting anyone seeking to grapple with this controversy is that the arguments cannot meet each other head on unless and until participants agree on what is meant by ‘anti-Semitism’. Without such common ground, questions put to witnesses for the Respondents seeking to elicit a view as to whether such-and-such a comment ‘was’ or ‘was not’ anti-Semitic lacked any meaning. As we have mentioned (and will more fully explain in due course), the Claimant bases his case in part on the rejection by the Respondents’ Congress (in2011) of the ‘Working Definition’ of anti-Semitism produced by what was then the European Union Monitoring Centre on Racism and Xenophobia (referred to above and below as the EUMC). He was content with that definition. Others disagreed, regarding it as exposing critics of Israel to the unfair accusation of anti-Semitic conduct. They pointed to the fact that the definition might be read as branding attacks on Zionism as anti-Semitic and precluding criticism of Israel save where ‘similar’ to that levelled against any other country. We cannot escape the gloomy thought that a definition acceptable to all interested parties may never be achieved and count ourselves fortunate that it does not fall to us to attempt to devise one.
55. [The support of other bodies]
…The Claimant does much of his campaigning through the ‘Academic Friends of Israel’ (‘AFI’), an impressively-presented organisation with a PO Box address, a mission statement and a letterhead showing its patron as the Chief Rabbi and its advisory board as comprising a list of dignitaries including the President of the Board of Deputies of British Jews. Despite appearances, as the Claimant engagingly told us, AFI consists of him, his wife and a computer. Like any experienced political activist, he is alive to the PR benefits of disseminating his own views in such a way as to seem to be speaking for a significant number of others.
74. Motion 70, which was also passed, expressed the view that the EUMC ‘Working Definition of anti-Semitism’ confused criticism of Israeli government policy and actions with “genuine” anti-Semitism and was being used to silence debate about Israel and Palestine on university and college campuses. Accordingly, the motion resolved that the union should make no further use of the Working Definition and dissociate itself from it, campaigning for open debate concerning Israel’s past history and current policy while continuing to combat all forms of racial or religious discrimination. We will return to this subject when dealing with complaint (9) below.
76. Complaint (2): The Respondents‘ response to the report of the All Party Parliamentary Inquiry into Anti-Semitism
;
Parliament’s expert witnesses on antisemitism, Denis MacShane, top and John Mann, called by the claimant.
77 The Inquiry was commissioned by Mr John Mann MP, Chairman of the All Party Parliamentary Group against Anti-Semitism, and a witness before us. A cross-party committee of MPs (‘the Committee’) chaired by the Rt Hon Mr Denis MacShane, also a witness before us, was appointed and began work in 2005. It reported in September 2006.
78 The report runs to over 50 pages plus appendices. We will not attempt to summarise it but it may help to note certain features. In the first place, the Committee found that anti-Semitism was on the rise. The new trend appeared to be largely associated with the politics of the Middle East and in particular the Arab/Israeli conflict. The report concluded that the correlation between conflict in the Middle East and attacks on members of the Jewish community in the United Kingdom must be better understood and that academic research in that area would be welcomed (p
80. [Committee took evidence on boycott from various witness including John Pike, who said:] “We conclude that calls to boycott contact with academics working in Israel are an assault on academic freedom and intellectual exchange. We recommend that lecturers in the New University and College Lecturers Union (sic) are given every support to combat such collective boycotts that are anti-Jewish in practice. We would urge the new union’s executive and leadership to oppose the boycott.”
Jeremy Newmark, Chief Executive of Jewish Leadershship Council and witness for the Claimant. His evidence was found to be propesterous and untrue.
148. We regret to say that we have rejected as untrue the evidence of Ms Ashworth and Mr Newmark concerning the incident at the 2008 Congress (see our findings under complaint (8) above). Evidence given to us about booing. jeering and harassing of Jewish speakers at Congress debates was also false, as truthful witnesses on the Claimant’s side accepted. One painfully ill-judged example of playing to the gallery was Mr Newmark’s preposterous claim, in answer to the suggestion in cross- examination that he had attempted to push his way into the 2008 meeting, that a ‘pushy Jew’ stereotype was being applied to him. The opinions of witnesses were not, of course, our concern and in most instances they were in any event unremarkable and certainly not unreasonable. One exception was a remark of Mr Newmark in the context of the academic boycott controversy in 2007 that the union was “no longer a fit arena for free speech”, a comment which we found not only extraordinarily arrogant but also disturbing.
We did not derive assistance from the two Members of Parliament who appeared before us. Both gave glib evidence, appearing supremely confident of the rightness of their positions. For Mr MacShane, it seemed that all answers lay in the MacPherson Report (the effect of which he appeared to misunderstand). Mr Mann could manage without even that assistance. He told us that the leaders of the Respondents were at fault for the way in which they conducted debates but did not enlighten us as to what they were doing wrong or what they should be doing differently. He did not claim ever to have witnessed any Congress or other UCU meeting. And when it came to anti- Semitism in the context of debate about the Middle East, he announced, “It’s clear to me where the line is … ” but unfortunately eschewed the opportunity to locate it for us. Both parliamentarians clearly enjoyed making speeches. Neither seemed at ease with the idea of being required to answer a question not to his liking.
150 It seems to us that a belief in the Zionist project or an attachment to Israel or any similar sentiment cannot amount to a protected characteristic. It is not intrinsically a part of Jewishness and, even if it was, it could not be substituted for the pleaded characteristics, which are race and religion or belief.
Accordingly, if and in so far as the Claimant seeks to base his claim on what might be termed a sub-characteristic (we are bound to say that we remain uncertain as to Mr Julius’s position on this point), we find that it is not open to him to do so. A separate matter, which we will address in relation to the individual claims, is whether the treatment complained of, or any of it, was ‘related to’ his Jewish race or his Jewish religion or belief.
Harassment: the individual complaint
152 Complaint (1) (certain resolutions in relation to Israel) is without substance. The resolutions were passed by Congress, for the decisions of which, as we have explained, the Respondents cannot be held liable. Through their employees and the NEC they acted constitutionally in managing the debates and implementing resolutions except where they understood (in the Claimant’s favour) that the law precluded them from doing so. Was their behaviour (rather then that of pro- Palestinian activist fellow-members) unwanted? It seems to us that it was unobjectionable and that no legal claim can sensibly be based upon it. If, as his letter before action suggested, he would prefer them to behave unconstitutionally by subverting the authority of Congress and the union’s democratic processes, he cannot base a legal claim on that preference. To entertain it would bring the law into disrepute. It is implicit in the word ‘unwanted’ that a claimant complaining of harassment must have a sustainable ground for feeling aggrieved about the conduct on which the claim is rested. He has none.
153 That disposes of the claim, but we will complete the analysis. Was the conduct ‘related to’ the Claimant’s protected characteristics of race or religion or belief? Plainly, the Respondents‘ conduct was not. Their constitutional behaviour was not connected in any way whatsoever with his Jewishness.
154 Did the Respondents‘ conduct have the effect of violating the Claimant’s dignity or creating the necessary adverse environment for him? Self-evidently, it did not.
155 Even if we were persuaded that complaint (1) could somehow stand on the strength of the actions of Congress or individual members, we would not uphold it. Apart from anything else (in particular, the question whether debates and decisions about Israel, the academic boycott and so forth ‘related to’ the Claimant’s race or religion or belief), the requisite effect would not be made out. We bear in mind the need to avoid trivialising the protection against harassment. No doubt the Claimant found some of the motions and some things said in the course of debates upsetting, but to say that they violated his dignity or created for him an adverse environment such as to merit the use of any of the five statutory adjectives (see s26(1 )(b)(ii» is to overstate his case hugely. In his evidence he spoke of reactions of ‘disappointment’. As our findings on the time defence (para 140) show, he also claimed to have been too busy to think about union matters until shortly before the proceedings were instituted. Measuring his own experience against the strong language of the legislation, we are not persuaded that, even if considered on the basis of his subjective perception alone, an effect capable of amounting to harassment is made out.
156 Moreover, even if, contrary to our finding, the Claimant perceived the conduct complained of as satisfying the language of s26(1 )(b), we are quite clear that it would not be reasonable for it to have had such an effect (see s26(4)(c». We have two main reasons for this view. First, as the authorities show, context is critical. The Claimant is a campaigner. He chooses to engage in the politics of the union in support of Israel and in opposition to activists for the Palestinian cause. When a rugby player takes the field he must accept his fair share of minor injuries (see Vowles, para 35, citing an earlier Court of Appeal authority). Similarly, a political activist accepts the risk of being offended or hurt on occasions by things said or done by his opponents (who themselves take on a corresponding risk). These activities are not for everyone. Given his election to engage in, and persist with, a political debate which by its nature is bound to excite strong emotions, it would, we think, require special circumstances to justify a finding that such involvement had resulted in harassment. We find no special circumstances here.
Secondly, the human rights implications of the claim must not be overlooked. As we have noted, Article 10(2) of the Convention countenances limitations on freedom of expression only to the extent that they are necessary in a democratic society. The numerous authorities under domestic and Community jurisprudence (some cited above) emphasise repeatedly that freedom of expression must be understood to extend to information and ideas generally, including those which offend, shock or disturb society at large or specific sections of it. If the case were marginal (which it certainly is not), we would unhesitatingly hold, pursuant to the 1998 Act, ss3 and 12, that the narrow interests of the Claimant must give way to the wider public interest in ensuring that freedom of expression is safeguarded.
157 Complaint (2) is also devoid of any merit. The Respondents defended themselves courteously but robustly against treatment by the Parliamentary Committee the fairness of which was, to put it at its very lowest, open to question. Their response was sincere and had substance. On any view, it was open to them to do as they did. Their action cannot properly be seen as ‘unwanted’: it was perfectly proper and unobjectionable. No legal claim can arise from it. Our reasoning on the meaning of ‘unwanted’ under complaint (1) is repeated.
158 In any event, the assertion that the Respondents’ act of defending themselves, even if ‘unwanted’, constituted harassment of the Claimant is manifestly untenable. Even if it is assumed in his favour that the conduct was ‘related’ to one or both of his protected characteristics, it did not have the prescribed effect. As an eager participant in the political debate and a strong critic of the union, he doubtless drew satisfaction from the Parliamentary Committee’s remarks, but he cannot have been surprised that the Respondents reacted as they did. The idea that their doing so violated his dignity is absurd. Nor did it create forhim an environment to which any of the statutory adjectives can sensibly be applied. On his own case, he was “troubled”, “upset” and “hurt”. We do not accept that, judged only by reference to his subjective perception, anything close to the required adverse effect is established.
159 Further and in any event, such an effect, if it had been experienced, would not have been reasonable. The implication of this complaint is stark: that the Respondents could not lawfully defend themselves by answering the critical comments of the Parliamentary Committee for fear of harassing the Claimant by doing so. Our comments on context and human rights in respect of complaint (1) are repeated, mutatis mutandis.
160 There is nothing in complaint (3)……..
161 Complaint (4) is palpably groundless.
162 In complaint (5) we find for the first time a matter about which a legitimate grievance is raised. Although the information came to them very late, theRespondents’ decision-makers were made aware before the conference that SAHRC, an independent and reputable body, had upheld a complaint against Mr Masuku of hate speech. It seems to us that in deciding not to revoke the invitation the Respondents exposed themselves to a complaint of harassment on the part of Claimant which can be seen as arguable if measured against the language of the 2010 Act. We will return to complaint (5) in due course.
163 Complaint (6) is obviously untenable…
164 Complaint (7) fares no better…
165 There is nothing in complaint (8)….
166 In respect of complaint (9) the Claimant again fails to make out any arguable complaint of ‘unwanted’ conduct against the Respondents. There was a debate, constitutionally managed by them, which culminated in the vote to reject the EUMC Working Definition. It was open to Congress to consider that motion. Its legality was not in question. The vote was valid and the outcome was the product of the union’s democratic processes.
167 Complaint (10) is obviously hopeless.
168 Mr Julius argued that, in a case like this, a complaint of harassment must be judged on the basis of an assessment of the cumulative effect of all the matters complained of. He has a valid point: the tort can certainly take the form of a series of apparently minor acts or omissions which, taken together, cause harm reasonably seen as fulfilling the statutory language and meriting a legal remedy. The difficulty here is that the Claimant has failed to show a succession of events (or non-events) about which any complaint against the Respondents can sensibly be made. We have found that he has identified only one matter on which a legitimate grievance could be based, namely the failure (as he sees it) to revoke the invitation to Mr Masuku on 4 or 5 December 2009 (complaint (5». No question of cumulative effect arises.
…
Outcome and Postscript
177 The result is that the proceedings are dismissed in their totality. The Claimant has put before us one claim which, on initial examination, appeared arguable on its merits. Closer scrutiny, however, showed it to be clearly unsustainable. And, being hopelessly out of time, it is outside our jurisdiction in any event. The other nine claims are wholly unfounded and many are also defeated by the jurisdictional time bar.
178 Lessons should be learned from this sorry saga. 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 (Chj). 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
181 We hope that something of benefit can be salvaged from the wreckage of this litigation for the benefit of the Respondents and all their members, including the Claimant and those who share his views. The matters explored in relation to complaint (5) illustrate the need for decision-makers to be willing to react quickly to events in order to avoid the risk of attracting legitimate criticism. It was also regrettable that Mr Robinson’s complaint was referred to Mr Hickey, a well-known pro-Palestinian activist, and that it was never resolved. If an internal rule dictated the reference to Mr Hickey, it should be amended. Procedural rules should be the servants of organisations, not their masters. The obvious aim should be to devise a means of hearing and resolving complaints in which all interested parties,particularly the complainant, can feel confident. Mr Robinson was denied that comfort.
182 No doubt there are other lessons for the parties to learn. As they look to the future we hope that they will acknowledge the need to make a fresh start and work together with energy and determination to re-build trust. If they do so, a happier and more mutually beneficial relationship may yet develop.