myerson-employment

Published October 2011

The Equality Act 2010 has been in force for a year and it remains to be seen what affect this may have on the number and nature of claims to Employment Tribunals.

Employment Tribunal statistics suggest that the only notable increase in discrimination claims is in the area of age discrimination. One area in which the number of claims has remained consistently and comparatively low is that of religion and belief (including philosophical belief). Although the number of claims is low, this area has attracted recent attention as there is a trend for Employment Tribunals to interpret the scope of this protected characteristic widely.

Religion and Religious Belief
The meaning of religion and religious belief for these purposes is wide although it does require a “clear structure and belief system”. New religious movements as well as the more commonly practised religions are protected.

Philosophical Belief
The meaning of philosophical belief is perhaps less settled and it is in relation to this issue that the Employment Tribunals have given some recent interesting decisions.

The leading case is Grainger plc v Nicholson, where the Employment Appeal Tribunal held that a belief in climate change was capable of amounting to a philosophical belief. In doing so the Court explored some guiding principles, including that a philosophical belief:

  • must amount to a belief rather than a mere opinion;
  • must be genuinely held;
  • must relate to a weighty and substantial aspect of human life;
  • must attain a certain level of cogency, seriousness, cohesion and importance similar to that of a religious belief;
  • must not be incompatible with the human dignity or human rights of others.

Consistent with that approach, Employment Tribunals have also held that anti-fox hunting and anti-hare coursing beliefs constitute philosophical beliefs. A further illustration of the diversity of beliefs protected is an Employment Tribunal’s decision that a belief in spiritualism, life after death and the ability of mediums to contact the dead were capable of amounting to either religious or philosophical beliefs.

In another recent case, an Employment Tribunal, perhaps surprisingly, found that a BBC employee’s belief in the higher purpose of public service broadcasting in promoting cultural interchange and social cohesion was a protected philosophical belief.

The belief attracted protection even though it stemmed from personal experiences rather than being  something similar to a religious belief. Conversely, an Employment Tribunal, perhaps concluded that views that the 9/11 and 7/7 attacks were “false flag operations” authorised by the US and UK Governments, although genuinely held, were not philosophical beliefs for discrimination purposes as they did not meet even a bare minimum standard of coherence and cohesion but were instead absurd.

What is clear from these decisions is that it is very difficult to decide where the line is drawn around this particular protected characteristic. Employers should be very wary of a dismissive response to the beliefs of employees, and the behaviour of employees based on those beliefs, however unconventional they may seem. Behaviours attracting attention may include dress codes, habits, diet, certain practices or even promoting certain personal beliefs. The potential for claims in this area (including claims of harassment) is clear and, further, by virtue of the very nature of the protected characteristic, there is exposure to extreme claims with unpredictable outcomes.

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