As most readers will know, the Equality Act 2010 offers protection from discrimination on eight different characteristics. This includes protection from discrimination on the grounds of "religion or belief".
What qualifies as a religion is likely to be reasonably clear from the circumstances - what is a protected belief has proven a more contentious issue in the employment tribunal – with some, perhaps surprising, results.
Last month for example, an employment tribunal ruled that a belief in Scottish Independence should qualify as a "philosophical belief" under the Equality Act 2010 and therefore benefit from protections against discrimination on these grounds.
This case builds on the landmark decision of Grainger plc and others v Nicholson, which set out the relevant factors to be taken into consideration when establishing the existence of a philosophical belief for the purposes of the Act. These factors are:
- That the belief must be genuinely held;
- That it must be a belief - an opinion or a viewpoint will not be enough;
- That it must be a belief as to a weighty and substantial aspect of human life;
- That it must attain a certain level of cogency, seriousness, cohesion and importance; and
- That it must be worthy of respect in a democratic society and not be incompatible with human dignity and/or not conflict with the fundamental rights of others.
Is political opinion a protected 'philosophical belief'?
In the Scottish Independence case, Mr C McEleny v Ministry of Defence, a SNP Councillor argued that his support for independence had a 'sufficiently similar cogency to a religious belief … to qualify as a philosophical belief'. The Ministry of Defence argued that the belief was political in nature and noted that the support for Scottish independence did not extend far beyond Scotland and even less so beyond the United Kingdom. It was argued on behalf of the respondents that the lack of 'substantial impact' on members of the public on a wide enough scale meant that it should not, and could not, constitute a religious belief.
In giving weight to the factors established in Grainger, the tribunal found in favour of the Claimant and agreed that his support for Scottish independence was of sufficiently similar cogency to a religious belief and therefore amounted to one of the protected characteristics contained within the Equality Act.
The Employment Judge was clear to state that this case does not set a precedent that all political opinion will now be protected from discrimination. It was, in the tribunal's view, apparent in this case that the claimant's personal belief in Scottish independence extended beyond an opinion that independence would be beneficial to the country but instead amounted to a 'fundamental belief in the right of Scotland to national sovereignty'.
This is not the first case to consider political beliefs. Labour party activist Cornelius Olivier was dismissed from his role as assistant advisor in his local jobcentre after standing for local election as a candidate for the Labour party, and for having a letter published in a local newspaper criticising government tax cuts. Again, the employment tribunal found his political views could be considered a philosophical belief under the Equality Act.
Political beliefs do, then, seem to potentially qualify for protection – subject to the Grainger criteria. One area that can easily be seen as a potential battle ground in a future tribunal case is whether extreme political beliefs (of either side of the spectrum) are "worthy of respect in a democratic society". That is sure to be a hotly debated point.
Other beliefs that have been deemed sufficiently cogent to receive protection include (i) a strong belief that mankind is duty-bound to act on catastrophic climate change; (ii) humanist beliefs; and (iii) a strong commitment to the public sector.
Does this mean all beliefs are protected?
It is not, though, one way traffic. Some beliefs put forward have not been deemed appropriate for protection. A strong belief that wearing a poppy in November is important; denial of the Holocaust; and belief in conspiracy theories surrounding terrorist attacks, were, while considered important to the claimant in each case, not of sufficient cogency as to constitute a philosophical belief under the Equality Act.
More recently, a former Mulberry employee who refused to sign a copyright agreement because she held a “philosophical belief” that she should own the rights to her work lost her case at the Employment Appeal Tribunal.
In Gray v Mulberry Company (Design), the Claimant suggested that she was “passionate” that individuals should own and profit from their work, suggesting it was a “spiritual practice” of identity and human rights. She conceded that these beliefs had been held privately and she had not referred to them specifically during discussions with the company about the copyright agreement. The employment tribunal found her belief was not eligible for protection. The EAT agreed, stating that “having a belief relating to an important aspect of human life or behaviour is not enough in itself for it to have a similar status or cogency to a religious belief”.
What does this mean for employers ?
With issues such as Brexit and Scottish Independence prominent and the debate showing no signs of abating, politically active employees may be keen to strike up conversations and make their beliefs known at work. Employers must be aware that if such employees can meet the Grainger test, strong political views can be protected under the Equality Act 2010.
Accordingly employers should give thought to the careful management now required and principles that need to be applied.
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