Back to top
Article

Belief in the system

18 May 15

Employment briefing: philosophical beliefs are just as important as religious beliefs, the EAT has stated in the latest case to test what constitutes a protected characteristic

by Amanda Jones

The first authoritative case to test the boundaries of the legislation concerning discrimination on the ground of religious or philosophical belief was Nicholson v Grainger plc (UKEAT/0219/09). There it was held that a strongly held philosophical belief about manmade climate change and the need to cut carbon emissions, fell within the definition of philosophical belief.

This landmark decision set out relevant factors for a philosophical belief to achieve “protected characteristic status”. In particular: there should be evidence that the belief is genuinely held; it should be more than an opinion or viewpoint; it must be about a weighty and substantial part of human life and behaviour; it must achieve a certain level of importance, cohesion and cogency; and finally, it must be worthy of respect in a democratic society.

Testing the limits

Since Nicholson, tribunals have considered whether beliefs in Marxism, anti-fox hunting, the “higher purpose” of public service broadcasting, that lying is always wrong, about whether a poppy should always be worn in early November, and whether mediums can communicate with the dead, have come within the ambit of the legislation.

One of the first cases to consider whether political beliefs could fall within the scope of the Equality Act 2010 was Olivier v DWP in 2013. In this case it became clear that strong identification and active participation with a political party could constitute a philosophical belief which would then be protected under the religion and belief provisions of the 2010 Act. However, the tribunal stopped short of finding that mere membership of or support for a political party would be sufficient to qualify as a philosophical belief under the 2010 Act. This would not meet the test set down in Nicholson.

Union contests “socialism” belief

Perhaps unsurprisingly in an election year, the spotlight in a recent Employment Appeal Tribunal case was on whether or not left-wing democratic socialist beliefs constituted a philosophical belief. What is more surprising is that the employer was a trade union.

In Henderson v GMB, Henderson was employed as a regional organiser for the GMB trade union. As part of his role, he undertook political work on behalf of the Labour Party. However, organising picket lines at the House of Commons protesting against Government plans to cut state pensions and writing politically driven articles became too much for his employer. GMB described one article he had written as “too left wing” and, following a series of incidents, dismissed him for gross misconduct.

Henderson claimed he had been unfairly dismissed due to his philosophical belief of “left wing democratic socialism”. While the employment tribunal rejected his unfair dismissal claim, it determined that “left wing democratic socialism” is a philosophical belief for the purposes of the 2010 Act and that Henderson had suffered unlawful discrimination and harassment on the basis of those beliefs. Injury to feelings compensation was awarded at a level of £7,000. The Tribunal held that although the principal reason for dismissal was Henderson’s conduct, “a substantial part of the reasoning behind dismissing the claimant was because of his philosophical belief and was an effective cause of his dismissal”.

Both parties appealed the first instance decision, Henderson against the finding that he was fairly dismissed and the GMB on the finding that Henderson was discriminated against or harassed on the grounds of philosophical belief.

In considering the appeal and cross appeal, the EAT could find no evidence that Henderson’s political beliefs played any part in the decision to dismiss him. His dismissal, they concluded, was much more likely to be due to his conduct rather than his philosophical beliefs. The EAT also held that the findings of unlawful discrimination and harassment could not stand, as there was no evidential basis for the claims. While much turned on the facts of the case, Mrs Justice Simler (who sat alone) made some interesting observations about philosophical beliefs as part of the protected characteristic of religion and belief. In particular the EAT rejected any suggestion that philosophical belief was any less important than a religious belief, stating that “all qualifying beliefs are equally protected. Philosophical beliefs may be just as fundamental or integral to a person’s individuality and daily life as are religious beliefs”.

Therefore, while we are in the midst of a political environment, organisations should be mindful of the extent of protection to employees and workers in this regard.

Amanda Jones, partner, Employment, Maclay Murray & Spens LLP

Have your say


Your comment

Devan Maistry

Friday October 9, 2015, 13:20

The Court of Appeal judgment in Maistry v BBC [2014] EWCA Civ 1116 suggests that establishing a philosophical belief in order to attract legal protection may be of little value. Lord Justice Underhill found that in order for discrimination to be possible, any alleged discriminator must be aware of a philosophical belief at the relevant time.

He says at paragraph 13: "The Applicant's essential answer, as I have said, is that it was impossible that the individuals in question could have been unaware of his belief in BBC values given that they are pervasive in the BBC, and perhaps also because he had, in the case of the disputes which gave rise to the acts of complaint or acts complained of, referred to those values, as the Tribunal acknowledged in the passage that I have read. But I am afraid to say that I do not believe that it is arguable that a generalised assumption that senior management employees will subscribe to BBC values can be equated with the knowledge that a particular employee has a philosophical belief in those values. That is not the same thing. The fact that to the applicant those values constituted a belief with similar status and cogency to a religious belief does not mean that will be so in every case. To others it might indeed be no more than their employer's mission statement about the values that they were expected to observe at work."

As a philosophical belief can only be established by a tribunal, proving discrimination is impossible. In short if the Court of Appeal is followed it would seem the device of the "philosophical belief" offers no protection making legal analysis somewhat redundant. Additionally the UK may be in breach of a treaty obligation.

It would be useful to clarify the position.