Protection of philosophical beliefs
The issue of what amounts to a protected philosophical belief, has been an employment law “hot topic” for a number of years. Some recent employment tribunal decisions have had to consider the position in relation to some fairly contentious areas.
The Equality Act 2010 prohibits discrimination on grounds of religion and also “philosophical belief” (originally “similar philosophical belief” under the 2003 regulations). The leading authority on what amounts to a protected philosophical belief is the Grainger case which says that, to be protected, a Claimant’s belief must:
- be genuinely held;
- not just an opinion or point of view;
- be a belief as to a weighty and substantial aspect of human life and behaviour;
- attain a certain level of cogency, seriousness, cohesion and importance; and
- be worthy of respect in a democratic society, and not incompatible with human dignity.
The Forstater case (mentioned below) has emphasised that only very extreme views will fall foul of point 5, and some views which are offensive or disturbing, will nonetheless be protected.
The Grainger test is often central to whether a claim for alleged discrimination on grounds of philosophical belief can proceed, and the Claimant’s beliefs will be subjected to scrutiny by the employment tribunal, carrying out an assessment of these 4 points.
In this blog, we look at some recent decisions on what may amount to a philosophical belief. Remember that even if a Claimant is able to show they have a protected belief, that is far from the end of the story. They still need to show that they were subject to unlawful discrimination due to their beliefs.
Anti-Zionist views
One high profile case which has recently been extensively reported in the press is the case of Professor David Miller v University of Bristol, considering whether the Claimant’s “anti-Zionist” beliefs were protected under the Equality Act.
Ant-Zionist beliefs were in this context described as opposition to the creation or protection of a Jewish state in the Middle East (i.e. Israel), and in his evidence the Claimant made clear that his beliefs do not extend to antisemitism, or opposition to Judaism itself. He considered Zionism to be “inherently racist, imperialist and colonial”. He was dismissed by his employer following complaints about comments he made on social media and to the media.
The employment tribunal concluded that his anti-Zionist beliefs met the “Grainger” criteria. They were genuinely held, were coherent, and were worthy of respect in a democratic society. The Claimant had also been subjected to unlawful discrimination.
English nationalism
An employment tribunal decided that a belief in “English nationalism” is not protected.
A Claimant brought a discrimination claim against the Open University after he was dismissed following complaints about comments he made on social media.
The Claimant described himself as an “English nationalist” and believed that those he considered “British” should be treated more favourably by the government. Ancestry and ethnicity are, he believed, critical to nationality – Jewish people cannot be British; black people are “less British”.
The employment tribunal concluded that the Claimant’s beliefs were “not worthy of respect in a democratic society” and were “incompatible with human dignity and the fundamental rights of others”. The beliefs were described by the tribunal as not just shocking or offensive to others (which would not necessarily prevent them being protected) but were in fact, to some extent, “akin to Nazism” (and so could not be protected).
Opposition to “woke” beliefs about race
In the case of Corby v ACAS there was discussion of whether the Claimant’s beliefs about critical race theory (CRT) and feminism were protected.
The Claimant opposed identity politics which, he considered, pit groups against one another based upon their race and gender. He believed that what he called the “woke” approach to racism (CRT) is flawed because its belief in structural racism can lead to segregation and ethnocentrism. He stated he believed people should be judged by their character, not their skin colour.
The tribunal found that his beliefs about race were protected (but not his beliefs about feminism). He had thought carefully about his position on racism, which he could clearly explain. These were important issues to him as he was married to a black woman and the father of black children. These were cogent, serious beliefs which were worthy of respect and protection.
Belief that wearing a mask is like slavery
In the case of AB v CD Ltd, an employment tribunal struck out a claim as having no reasonable prospect of success when a Claimant argued that he refused to wear a mask (during the Covid pandemic) due to his philosophical beliefs and objection to mask wearing. He asserted that a requirement to wear a mask was a breach of the “Nuremberg code” and that the message that masks were effective was a “colossal deception”.
The tribunal concluded that his claim that mask wearing was against his philosophical beliefs was “so wide-ranging as to be meaningless” and was not, therefore, a protected belief.
A similar decision was reached in another, slightly earlier, case, where a Claimant’s belief that he should not be subjected to arbitrary and pointless rules about mask-wearing, was not a cogent or coherent belief and was also incompatible with the rights of others (due to the risk of infecting others).
Gender critical beliefs
A reminder that gender critical beliefs (the belief that a person’s sex is fixed at birth and cannot change) are likely to be legally protected (as are opposing beliefs) as confirmed by the Forstater decision (see our earlier blog).
This issue continues to be a contentious and high profile one, as evidenced by the controversy last year about the decision of The Stand comedy club in Edinburgh to cancel an appearance by MP Joanna Cherry, apparently due to staff objections about her gender critical views, a decision widely believed to be likely to amount to unlawful discrimination.
Conclusion
These recent decisions illustrate the potentially wide range of issues which could amount to a protected philosophical belief under the Equality Act, although it should be noted that employment tribunal decisions are not “binding” on other ETs. Other beliefs which have previously been held by employment tribunals to be protected include a belief in democratic socialism, in participating in the democratic process, in ethical veganism, and that climate change is man made.
There are limits of course and, as above, extreme, trivial or incoherent views may not be protected. Employment tribunals have previously refused protection for a belief that the holocaust did not happen, or that 9/11 was a “false flag” operation. Nor, as we reported previously does support of a particular football team amount to a protected philosophical belief!
Issues such as these can arise in any workplace and will present challenges for employers, particularly where employees hold opposing and conflicting beliefs. But the law is clear that where a belief qualifies for protection under the Act, the employer must not discriminate, directly or indirectly. Crucially, an employer may be liable for one employee harassing another for reasons connected to a philosophical belief, unless the employer has taken proper steps to prevent it.
These are challenging issues and expert advice should be sought. Please do not hesitate to contact a member of our specialist employment Team.
This update contains general information only and does not constitute legal or other professional advice.
Douglas Strang, Senior Associate: dst@bto.co.uk / 0141 221 8012 / Connect with Douglas on LinkedIn
