The case of Grainger PLC v Nicholson UKEAT/0219/09/ZT gained lots of media coverage, including the front page of today’s The Independent (“Green beliefs win legal protection”). I covered the case when it was before the Employment Tribunal and Mr Nicholson initially won. The Employment Appeal Tribunal (EAT) has rejected the company’s appeal and held that Mr Nicholson’s belief in climate change is capable of qualifying as a philosophical belief within the meaning of the Employment Equality (Religion or Belief) Regulations 2003. These regulations protect workers with religious or philosophical beliefs from being discriminated against because of their religion or belief. This was a preliminary hearing on whether belief in climate change could qualify within the meaning of those Regulations. Mr Nicholson still needs to return to the ET for the case on its facts to be decided. That will include cross-examination of his beliefs to establish to what extent they govern his life.
It is predicted that this decision will lead to employees being able to claim that they have been discriminated against on the ground of any spurious or loony belief that they might have or pretend to hold. Undoubtedly employers are going to face some interesting assertions of belief over time. To assist in considering what factors should be taken into account when considering the nature of the asserted belief, the EAT set out some guidelines for deciding whether a “philosophical belief” should qualify;
- The belief must be genuinely held
- It must be a belief and not an opinion or viewpoint based on current information
- It must be a belief as to a weight 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 judgment notes that political beliefs could qualify for protection and, given the furore over Nick Griffin’s recent appearance on BBC’s Question Time and subsequent media concern that the BNP is on the rise, it is interesting to consider whether a member of the BNP who is dismissed from his/her job because of support for the BNP could qualify under these Regulations for protection. This was raised in Grainger and the Court pointed to (5) above as the limitation which should prevent “racist or homophobic political philosophy” from gaining protection. On the face of it, therefore, the hypothetical BNP member would not be able to claim under these Regulations. This is, of course, a fairly new area of law and that particular issue has not yet been tested.
Please contact me with any comments or details of any other cases that take this point further, or if you simply need advice on your own position. I can be contacted on 0207 464 8433 or via email at firstname.lastname@example.org