The Employment Appeal Tribunal’s (EAT) recent judgment in Grainger Plc v Nicholson may herald a revolution in discrimination law, potentially opening the doors wide to new types of discrimination claims in the future. It also throws doubt on the government’s proposals for the Equality Bill. Some of its key provisions may, in fact, be setting limits that are not permissible in the European Framework Directive.
The case concerned the scope of the Employment Equality (Religion or Belief) Regulations 2003 (the regulations) prohibiting discrimination on the grounds of religion or belief. Tim Nicholson, who was head of sustainability, claimed discrimination on the ground of belief, arguing he had “a strongly held philosophical belief about climate change and the environment”. He said this was protected by the regulations which state that ‘belief’ means any religious or philosophical belief.
While the EAT accepted some limits to the definition of philosophical belief, it refused to apply any outside the European Convention on Human Rights case law, which it held was directly relevant.
Limitations on belief
The EAT accepted the following:
The belief must be genuinely held
It must be a belief, and not an opinion or viewpoint based on the present state of information available
It must be a belief concerning a weighty and substantial aspect of human life and behaviour
It must attain a certain level of cogency, seriousness, cohesion and importance
It must be worthy of respect in a democratic society, be not incompatible with human dignity, and not conflict with the fundamental rights of others.
The EAT also said that the belief should have a similar status or cogency to a religious belief. The EAT refused to disqualify a belief based on a political philosophy, saying if Nicholson was successful in establishing his belief it was likely to be characterised as a political belief.
Unless appealed, the case will now go back to the employment tribunal to decide whether there was discrimination.
Open door to new claims
This judgment has potentially far-reaching consequences for discrimination law, radically increasing the protection of an individual’s beliefs. Unless a particular belief is harmful to others, it seems likely to be protected. This presents real practical challenges for employers. What if a pacifist objects to working for defence clients, or an anti-vivisectionist for pharmaceutical clients? The decision leaves many questions unanswered, potentially leading to an ‘eggshell’ culture where employees are fearful of commenting on views which could later be said to be philosophical convictions.
Equality Bill provisions doomed?
The judgment also sits uneasily with the government’s proposed provisions in the new Equality Bill. These mirror existing regulations, but the explanatory notes expressly state that “political beliefs and beliefs in scientific theories are not religious or philosophical beliefs”. While not binding, these appear to conflict directly with the EAT’s interpretation of philosophical belief. Moreover, it could be said that the government’s interpretation is doomed as an impermissible limitation of the European Framework Directive. Whether the government addresses this as the Bill progresses through parliament remains to be seen.
A belief is likely to be protected unless it is harmful to others
Employers may face real challenges in understanding the dividing line and introducing policies and procedures to protect against discrimination claims
The judgment conflicts directly with the explanatory notes to the provisions dealing with religion and belief in the Equality Bill.
by Jonathan Exten-Wright, partner, DLA Piper