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Belief in independence capable of protection: employment judge

6 August 2018

An SNP councillor claiming unfair dismissal from his former employment at the Ministry of Defence has won a ruling that his support for independence qualifies as a philosophical belief under the Equality Act 2010 for the purposes of a discrimination claim.

Employment Judge Frances Eccles gave the preliminary ruling in the case brought by Chris McEleny, SNP group leader on Inverclyde Council, who claims constructive dismissal from his job as an electrician at the MoD munitions site in Beith, Ayrshire.

Mr McEleny alleges that after announcing his candidacy for deputy leader of his party in 2016, he was told his security clearance had been revoked and that he was suspended. After being interviewed by security officials on matters including his support for independence, he resigned claiming he had been unfairly singled out.

The MoD argued that a political belief did not have the status or cogency of a religious or philosophical belief, and support for Scottish independence would have “no substantial impact” on the lives of people in, for example, Tanzania, Peru or India.

Mr McEleny affirmed that he had a fundamental belief in the right of Scotland to national sovereignty, even if Scottish independence would not necessarily lead to improved economic and social conditions for people in Scotland. His solicitor Aamer Anwar argued that the case was similar to Grainger plc v Nicholson, in which an employee's strong beliefs concerning climate change were held capable of protection.

The judge agreed with the MoD that support or active membership of a political party did not in itself amount to a philosophical belief, but said she was persuaded that the claimant's views had “a sufficiently similar cogency to a religious belief... to qualify as a philosophical belief”, and it could therefore be relied on as a “protected characteristic” in terms of the 2010 Act for claiming discrimination.

The claim can now go to a full hearing.

Mr McEleny's solicitor Aamer Anwar described the ruling as “an unprecedented legal landmark”, and called on the UK Government to launch a proper inquiry into the events. The MoD said it would be “inappropriate to comment on the details of an ongoing employment tribunal”.

 

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Devan Maistry

Wednesday August 8, 2018, 16:18

The Court of Appeal in England suggests that establishing a philosophical belief may be pointless.

In Maistry v BBC a belief in BBC values was found to be a philosophical belief (EJ Pauline Hughes 29 March 2011, Birmingham 1313142/2010). However, Lord Justice Underhill in finally disposing of the matter (Maistry v BBC [2014] EWCA Civ 1116 (9 July 2014)) found that for discrimination to be possible the alleged discriminator must be aware that such a belief is held by the claimant as a philosophical belief.

Here is the crucial passage from the judgment.

"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."

Christopher McEleny has an impossible task if the Scottish courts follow the Court of Appeal reasoning in Maistry v BBC. He must prove that the MOD knew he held a philosophical belief when it allegedly discriminated against him. But such a philosophical belief has only just been established under cross-examination by a tribunal. The MOD could not have known he held a philosophical belief in Scottish independence and therefore could not have discriminated.