Consultant editor Darren Newman questions whether employment tribunals are qualified to decide what is “worthy of respect” in a democratic society.
Employment tribunals are designed to be pragmatic forums for resolving employment disputes. Making a ruling on the nature of philosophy is perhaps not their forte. However, this is precisely what is required in the case of Nicholson v Grainger plc. Mr Nicholson claims that he was dismissed from his employment because of his philosophical belief in anthropogenic climate change.
The question is whether or not that would amount to discrimination under the Employment Equality (Religion or Belief) Regulations 2003, which can apply only if Nicholson’s climate-change beliefs can be characterised as philosophical.
The Employment Appeal Tribunal (EAT) has held that they potentially can (Grainger plc v Nicholson), and in reaching that conclusion placed considerable reliance on the approach of the European Court of Human Rights, and particularly the case of Campbell and Cosans v United Kingdom. In Campbell, the parents of two children successfully argued that the system of corporal punishment in Scottish schools offended their philosophical convictions, and therefore breached the education provisions of the European Convention on Human Rights.
Worthy of respect
Nicholson’s case takes, potentially, a very wide view of what can count as a philosophy. In particular, the EAT refused to draw a sharp line between philosophical beliefs on the one hand and political beliefs on the other, going so far as to say that “a belief in the political philosophies of Socialism, Marxism, Communism or free-market Capitalism might qualify”.
However, one limitation that the EAT drew from Campbell was that the belief must be “worthy of respect in a democratic society and not incompatible with human dignity”. The EAT suggested that a “racist or homophobic political philosophy” would offend against this principle and therefore be excluded.
Facts of the case
The original employment tribunal held that an individual’s beliefs about climate change were capable of being a ‘belief’ under the Employment Equality (Religion or Belief) Regulations 2003.
After his post of head of sustainability at Grainger was made redundant in July 2008, Tim Nicholson issued employment tribunal proceedings alleging he had been discriminated against contrary to the regulations.
He argued he had been discriminated against because of his “asserted philosophical belief about climate change and the environment”.
The tribunal found that Nicholson had been discriminated against because of his beliefs [in a judgment in April 2009].
In January 2010, an Employment Appeal Tribunal ruled that the Nicholson could challenge his dismissal as being an act of discrimination provided he is able to establish that his belief is genuinely held and satisfies criteria as to the nature of the belief.
The belief must be a “weighty and substantial aspect of human belief and behaviour” that has attained cogency, seriousness, cohesion and importance, is worthy of respect in a democratic society and is neither incompatible with human dignity nor in conflict with the fundamental rights of others.
Employment tribunal members may have great expertise regarding what is appropriate in the workplace, but they are not qualified to decide questions on how democratic societies should operate.
Tribunal decisions are likely to be highly controversial if they turn on this point. For example, a London employment tribunal has already ruled that four union activists disciplined by Unison because of a leaflet they produced could not claim discrimination on the grounds of their Trotskyist beliefs, because such beliefs conflicted with the rights of others and were not worthy of respect in a democratic society.
The tribunal also found that it was the nature of the leaflet, rather than the politics of the officials, to which the union objected, but that rather more mundane point is unlikely to feature in the media coverage of subsequent appeals about the validity of socialist beliefs in a democracy.
My view is that there is actually no need to limit the scope of philosophical belief in this way. In the media fuss over Nicholson’s case, many lost sight of the fact that it is one thing to show that you have a philosophy, but quite another to show that you have been discriminated against because of it.
An important factor in any case of this sort is the divide that the courts have been prepared to acknowledge between a belief in something and the consequences that the belief has in terms of someone’s behaviour.
Direct discrimination will be established only if the less favourable treatment complained about is on the grounds of the belief rather than because of something that the employee has done or refused to do. If the employer is concerned about the employee’s behaviour, that will be a matter of indirect discrimination, even if the behaviour at issue is the direct result of the employee’s beliefs. This point is not without controversy, but it is now very well established in case law and is the basis for the decisions in Azmi v Kirklees Metropolitan Borough Council (a teaching assistant wearing a veil in class), Ladele v London Borough of Islington (a registrar refusing to conduct civil partnerships), McFarlane v Relate Avon Ltd (an employee who refused to counsel same-sex couples), and Chondol v Liverpool City Council (an employee who gave a Bible to a service user).
Because treatment based on an employee’s behaviour is a matter of indirect discrimination, the employer can argue that the treatment is justified if it is a proportionate means of achieving a legitimate aim. This test is by no means a straightforward one but it is at least one with which employment tribunals are well suited to dealing. It appears from the case law so far that an employer is entitled to require behaviour that is consistent with its overall ethos of equality, or that is necessary to ensure that the work is done effectively.
We should not panic then at the idea of tribunals taking a wide view of what constitutes a philosophy. If an employee has a philosophical commitment to racism, for example, there should be no problem in accepting that as a philosophy covered by the regulations. The employer will still be entitled to require the employee to behave in a way that does not involve any discrimination or harassment against colleagues or customers. If the employee cannot persuade the employer that he or she will be able to manage this, the employer is likely to be justified in dismissing the individual (see McFarlane v Relate Avon Ltd).
If the individual’s behaviour outside work impinges on the workplace, that may also give grounds for justified indirect discrimination. And an employer with a particularly strong ethos based on equality would be able to argue that it is a genuine occupational requirement for employees to share that ethos. All of these issues can be dealt with sensibly and pragmatically by tribunals, without having to put an entire philosophy on trial.
Turning back to Nicholson, it seems that his case will turn simply on why he was dismissed. If it was genuinely by reason of redundancy, that will not be discrimination. If it was simply because of his belief in climate change, that will be direct discrimination. If, however, he was dismissed because of the way in which he expressed his beliefs in the workplace, that will be indirect discrimination, and the issue of justification will then be considered. These are all matters that are well within the competence of the tribunals.
They do not make for good headlines and controversial news stories, but they are the stuff of everyday employment law – and that is what tribunals should be concentrating on.
- Direct discrimination will only be established if the less favourable treatment is on the grounds of belief, not something that the employee has done or refused to do. If the employer is concerned about an employee’s behaviour, that will be a matter of indirect discrimination. This allows the employer to argue that the treatment is a justified means of achieving a legitimate aim.
- If an employee is committed to racism, that is a philosophy that is covered by the regulations. However, the employer will be entitled to require an employee to behave in a way that does not involve any discrimination or harassment against colleagues or customers. If the employee cannot persuade the employer that he or she is able to manage this, the employer is likely to be justified in dismissing the individual.