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7th August 2018

Legal Issues – When is a belief protected in discrimination law?

The protection against discrimination in relation to religion or belief has long been a feature of UK employment law. Originally introduced in the early 2000s to comply with a European Directive, the current laws in operation are contained in the Equality Act 2010.

While ‘religion or belief’ is one protected characteristic in that Act, the two terms are often not synonymous when it comes to being interpreted in the Employment Tribunal (ET). We have enough case law on headscarves, crucifixes, turbans and yarmulkes to know that mainstream religions are covered in equality law, but there tends to be more of a question mark over what protections are given to a belief outside of the religious context.

The 2010 case of Grainger plc v Nicholson provided us with criteria that can be used to assess whether a belief is one that would be protected in law, namely that the belief must be:

  1. Genuinely held;
  2. A belief and not an opinion or viewpoint;
  3. A belief as to a weighty and substantial aspect of human life and behaviour;
  4. Of a certain level of cogency, seriousness, cohesion and importance;
  5. Worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others.

Of course, while criteria can be helpful, almost all of the key words above are themselves subject to interpretation. For example, in Grainger, the belief in question was related to climate change and environmentalism, which was held to meet the criteria. Anti-fox hunting has similarly been held to be a protected belief, as seen in Hashman v Milton Park (Dorset) Ltd.

However, in Farrell v South Yorkshire Police Authority, a belief that certain terrorist attacks were in fact authorised by the US and UK governments was held not to be protected, as it did not have any level of cogency and cohesion. Indeed, in that case the belief was described as ‘absurd’. Similarly, in Lisk v Shield Guardian Co Ltd a belief that people should wear a poppy to pay their respects around Remembrance Sunday was found to be lacking in cogency as well as not being related to a weighty and substantial aspect of human life and behaviour.

Of all the criteria above, number 4 seems to be the highest hurdle to overcome in the ET. In the recent case of Gray v Mulberry, Ms Gray refused to agree to an intellectual property clause related to her work, as she was working on a screenplay and novel that she was worried might be stolen by her employer. Ms Gray was then dismissed for refusing to sign the contract.

Following her dismissal, Ms Gray attempted to argue that the right to copyright and moral rights over her creations was a belief protected in law. However, the Employment Appeal Tribunal found that the belief lacked the requisite level of cogency for it to be protected. One difficulty for Ms Gray was showing that anyone but her held the particular belief in question.

However, as high a hurdle as it may be, meeting the fourth criterion is certainly not insurmountable. In another recent case, McEleny v Ministry of Defence, a former Scottish National Party (SNP) councillor, who was also an electrician working for the Ministry of Defence (MoD), resigned from his job after having his security clearance revoked following his announcement of his candidacy to become the SNP Depute Leader.

Mr McEleny claimed that he was targeted due to his publicised stance on Scottish independence, and stated that his belief on that subject met the criteria above, allowing him to bring a discrimination claim against the MoD.

The MoD attempted to argue that Mr McEleny’s standpoint was an opinion and not a belief, and that it lacked cogency, meaning that discrimination could not be claimed. In support of its defence, the MoD made the argument that Scottish independence would have no impact on those in other countries, such as Tanzania, Peru and India, and that the debate surrounding Scottish independence was not worthy of respect in any democratic society outside the UK.

The judge considered that Mr McEleny may not maintain his standpoint on Scottish independence if the SNP were no longer in favour of it. However, the judge was not convinced by the MoD’s arguments and instead found that Mr McEleny’s belief in Scottish independence related to a weighty and substantial aspect of life and that it met the test of cogency. As such, it qualifies as a protected belief, and Mr McEleny’s discrimination case against the MoD can proceed.

Taking all of the cases discussed in this article into account, employers are advised to exercise caution when making employment-related decisions based on an employee’s viewpoints, where those viewpoints could meet the criteria outlined above, be they political, moral or otherwise.

Another potential tricky situation can be where friendly debate in the workplace becomes heated or worse. In the current climate, with many of us having opposing opinions on Brexit, Scottish independence and the President of the United States, such discussions may be more likely. In that event, employers should take care not to be seen to favour one side more than another solely on the basis of a particular employee’s opinion.

In addition, it is prudent to keep in mind that what may seem like a ridiculous or unreasonable belief could still be one that is protected in law. Viewing such beliefs as an objective person can be difficult when the subject matter at hand is polarising, but the case law in general shows that the ET will not take too narrow an approach to whether a person’s beliefs are safeguarded in equality law.

If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.

7th August 2018