Legal Opinion: Protection of philosophical belief under discrimination law

In early 2011, employment tribunals held that an anti-fox hunting belief and a belief in the higher purpose of public service broadcasting were both capable of being protected philosophical beliefs under discrimination law. These findings put them on a par with mainstream religions in terms of protected status and add fuel to the fire of those who think that employment law has gone too far.

There has been much speculation about the range of philosophical beliefs that may be protected since an employment tribunal held, in the 2009 case of Grainger plc and others v Nicholson, that beliefs relating to man-made climate change were capable of protection. No definitive answer has been given, but these recent cases suggest that the range of protected philosophical beliefs may be far broader than originally thought.

In Hashman v Milton Park (Dorset) Ltd t/a Orchard Park, a tribunal was persuaded that the claimant’s belief in the sanctity of life and, in particular, his consequent anti-fox hunting and anti-hare coursing stance, constituted a belief under the Religion or Belief Regulations. The tribunal emphasised that the decision was very much based on the facts (they took account of how far the claimant ran his life to accord with his views) and did not mean that everyone opposed to fox hunting would necessarily hold a protected belief.

In Maistry v BBC, the claimant believed that public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion. The tribunal accepted that the claimant held a philosophical belief protected under discrimination law. The fact that the belief was summarised in the BBC’s (arguably political) mission statement did not prevent it from being a philosophical belief where that mission statement was the result of an underlying philosophical belief.

In Nicholson and Hashman, there was a focus on the impact of the claimants’ beliefs on both their work and personal lives, affecting many aspects of their behaviour including fundamentals such as diet and clothing. The pervasive nature of their beliefs was considered to be akin to a religious conviction. In Maistry, however, the claimant’s belief was related specifically to his working life, suggesting an even wider approach. The respondent warned the tribunal that the decision had the potential to open the floodgates to a raft of claims relating to claimants’ belief in the purpose of their public or private sector employer.

The Equality Act 2010 defines belief as “any religious or philosophical belief and a reference to belief includes a reference to a lack of belief”. In March 2010, the then Labour Government’s view was that it did not think that “views or opinions based on scientific – or indeed on political – theories can be considered to be akin to religious beliefs or philosophical beliefs”. This appears to conflict with tribunal decisions, particularly Nicholson, where the claimant’s beliefs were scientifically based, and Maistry, where the claimant’s beliefs were arguably political.

The criteria set out in Nicholson were considered in both Hashman and Maistry and provide employers with the best indication of the requirements that must be met in order for a belief to be a philosophical belief protected under discrimination law. In summary, these are that the belief must be:

  • genuinely held;
  • a belief, not an evidence-based opinion or viewpoint;
  • related to a weighty and substantial aspect of human life and behaviour;
  • cogent, serious, cohesive and important; and
  • worthy of respect in a democratic society, not incompatible with human dignity and not incompatible with the fundamental rights of others.

Tribunals have consistently emphasised the importance of the individual facts in determining whether the claimant holds a philosophical belief. This may mean that the range of beliefs protected is more limited than recent cases initially seem to suggest, as many claimants may fall short of the level of conviction required. It does nothing, however, to alleviate the uncertainty that employers face when considering whether or not employees’ beliefs are protected. There will no doubt be future cases dealing with various other potentially protected philosophical beliefs, though these too may be limited to their facts and of little assistance in clarifying what is protected.

There is some reassurance for employers in the fact that the establishment of a philosophical belief capable of protection under discrimination law is only the first step. As Employment Judge Hughes said in Maistry, “the real battleground is whether there has been less favourable treatment and, if so, whether it was on grounds of the belief relied on”.

Mark Taylor is a partner and Jessica Billington is an associate in the employment team at global law firm Jones Day.

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