The Employment Equality (Religion or Belief) Regulations 2003 prohibit discriminatory treatment in the workplace on the grounds of religion or belief - with belief stated to include "any religious or philosophical belief". But the regulations do not define what constitutes a philosophical belief. Two recent cases have provided some much needed guidance on this.
Grainger v Nicholson
Tim Nicholson claimed he was unfairly dismissed as head of sustainability at specialist residential landlord Grainger, because of his philosophical belief about climate change and the protected disclosures he had made. He alleged that his attempts to encourage the company to have a more robust corporate social responsibility (CSR) policy were obstructed, leading to his dismissal.
The Employment Tribunal decided at a preliminary hearing that his beliefs about climate change could be a "philosophical belief" within the regulations. Grainger appealed unsuccessfully to the Employment Appeal Tribunal (EAT) which held that although a belief in climate change is probably a political belief, it is capable of being a philosophical belief, which has legal protection. The case was sent back to the EAT for a full hearing of the issues.
The EAT identified five key characteristics a philosophical belief must have if it is to be protected. It must be:
not an opinion or viewpoint
related to a substantial aspect of human life and behaviour
cogent, serious, cohesive and important, with a similar status to a religious belief
worthy of respect in a democratic society, without conflicting with the fundamental rights of others.
The EAT indicated that a philosophical belief based on science (for example, Darwinism) and one-off beliefs, such as pacifism or vegetarianism, would satisfy this test. However, objectionable political philosophies (for instance, racism) would not be protected, as these would not be worthy of respect in a democratic society, and conflict with the rights of others.
Power v Greater Manchester Police Authority
Police trainer Alan Power claimed he was dismissed because he is a spiritualist who believes that messages from the dead help in criminal investigations. The EAT upheld the tribunal's decision that Power's belief in mediums who contact the dead is similar to a religious or philosophical conviction.
The EAT found that his beliefs were worthy of respect in a democratic society, and had sufficient cohesion and cogency to be a philosophical belief under the regulations. Again, the case was remitted for a full hearing.
Impact of these cases
These cases highlight how important it is for employers to have an equal opportunities policy that embraces all forms of discrimination. Grainger is a reminder that if an employer has policies on wider issues, such as sustainability and/or an approach to the environment, a failure to keep to these policies could expose them to a claim of discrimination from employees who have strong beliefs.
It has been suggested that these cases will open the floodgates to claims based on bizarre philosophical beliefs. This is doubtful, as the test for what will qualify will exclude many so-called beliefs.
Though both Nicholson and Power have established their beliefs could be protected under the regulations, they have some way to go to succeed in their claims that they were dismissed because of them. A claimant will be cross-examined about their belief to establish whether it meets the test set out by the EAT. Even if the belief is found to be protected, an employer that can show that the real reason for dismissal was something else should defeat any claim for discrimination.
By Roger Byard, partner and head of employment, Cripps Harries Hall