Extending legal protection to political belief plays into the hands of the extremists

Since yesterday, supporters of the Teddy Bear Alliance Party and the Church of the Militant Elvis Party (yes, these are real political parties) have something to celebrate – their members may well be protected from being discriminated against in the employment arena on the grounds of their political beliefs.

I find it surprising that England has no protection for political beliefs, when countries spanning the globe from Northern Ireland to New Zealand have long protected employees and prospective employees in this regard.

I would like to think that we are a tolerant and permissive society and therefore such protection is not necessary. And however much I may personally abhor extremist views, I still believe that people should be protected against discrimination for holding those opinions.

Protected reason

Before these changes came into force, if you did not like the fact a prospective employee was a member of the Liberal Party, the British National Party (BNP) or indeed, the Legalise Cannabis Alliance, you just did not hire them. Unless they could point to some other ‘protected reason’ for not being taken on, such as race or sex discrimination, they would not have been able to bring a claim. This may well be about to change. And the changes will have the effect of bringing employers in line with trade unions in respect of equality of treatment.

Until now, trade unions have been subject to tighter restriction in respect of their membership than employers have been over their choice of employees. Section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992 bans trade unions from recruiting a member on the grounds that they are a member of a political party.

Having been told in 2003 by the UK court that it could not expel a member of the BNP, the train drivers union Aslef recently succeeded in its attempt to justify the expulsion, when the European Court of Human Rights (ECHR) held that English legislation was in breach of Article 11 (freedom of association) of the Convention for the Protection of Human Rights and Fundamental Freedoms.

On 30 April 2007, the Employment Equality (Religion or Belief) Regulations 2003 were amended in a small but significant way. This may give rise to protection from discrimination on the basis of political opinion and also allows much more latitude for protection of employees for their philosophical beliefs, for example believers in Scientology.

Defining moment

The regulations previously defined a ‘belief’ as any “religious belief or similar philosophical belief”. This definition required a philosophical belief to be similar to a religious belief to qualify for protection.

That was a tall order, as demonstrated most recently in another case involving the BNP, in which one of its members failed to convince an employment tribunal that fascism counted as a ‘similar philosophical belief’.

On 30 April 2007, the word ‘similar’ was removed from the definition. This will considerably widen the scope of what might be regarded as a ‘philosophical belief’ so that any genuine philosophical belief is covered by the regulations. And this includes political belief.

The question then will be what is included as a philosophical belief? In discussing this amendment in the House of Lords, baroness Turner of Camden, suggested that ‘philosophical belief’ should be interpreted in line with case law at the ECHR and that the beliefs intended to be protected are those that amount to “a world view or life stance”.

Alien concept

Interestingly, therefore, it may well extend to beliefs that are not political in nature and are purely philosophical. For example, it may cover (flippantly) those in the Flat Earth Society (if there are still members),or those who believe we are not alone in the universe and that aliens walk among us, or-more seriously – Scientologists.

The changes may open up a whole new area of litigation. I fear that it will be those holding extreme political opinions who will avail themselves of this protection.

Barry Mordsley is also chairman of the International Bar Association Discrimination Committee.

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