Is a belief in Scottish independence protected under the Equality Act? - Ethan Laing

As the topic of Scottish independence returns to the forefront of our national discourse, it’s not unlikely that conversations and debate will be had in the workplace.

Ethan Laing is a trainee solicitor with Blackadders

As with any matter of such political significance, some employees will have differing views on the subject to those of their employers (and fellow employees). Against this backdrop, it’s important for both employers and employees to be aware of how the nature of such discussions may interact with the protections offered by the Equality Act 2010 (“the 2010 Act”).

The 2010 Act offers protection from discrimination and harassment in the workplace based on nine protected characteristics. One such characteristic is a religious or philosophical belief.

It can be safely assumed that a belief in, or against, Scottish independence cannot be regarded as religious. Therefore, the question turns on whether or not it could be classed as a philosophical belief. The Employment Appeal Tribunal has previously given some guidance on the definition of a philosophical belief, to the effect that;

It must be a genuinely held belief; It must be a belief, and not an opinion or viewpoint based on the present state of information available; It must be a belief as to a weighty 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, and must not conflict with the fundamental rights of others; and Whilst support of a political party does not itself amount to a philosophical belief, belief in a certain political doctrine such as Marxism or Capitalism, may qualify for protection. Given the prevalence of the subject over the last decade or so, it may not come as a surprise that the question has been considered by an employment tribunal before.

A case was brought by Christopher McEleny against the Ministry of Defence, where he worked as an electrician at a munitions site in Ayrshire, on the basis that he had been discriminated against in relation to his belief in Scottish independence. Mr McEleny was also an SNP councillor and announced in 2016 that he was going to stand for deputy leadership of the party.

Mr McEleny alleged that at the time he announced his candidacy for the position, the MoD suspended him from his duties, as well as removing his security clearance at the site where he worked.

Mr McEleny argued, at a hearing on whether or not his belief could qualify as a philosophical belief under the 2010 Act, that his belief was based on Scotland’s right to self-determination, which in turn influenced his choices, actions, and decisions. The MoD argued on the other hand that his belief did not have a sufficient degree of cogency or importance to impact the lives of others outside of Scotland, and was generally more akin to a political opinion.

The tribunal decided that, whilst his membership of the SNP and his belief in the party’s values was not sufficient to constitute a philosophical belief under the 2010 Act, Mr McEleny’s wider belief in independence was sufficiently cogent and of sufficient importance to constitute a philosophical belief under the 2010 Act. Further, the concepts of autonomy and self-determination were weighty and substantial aspects of human life.

Whilst this case does not guarantee that a belief in Scottish independence automatically qualifies for protection under the 2010 Act, it goes to show that it is nevertheless a possibility.

The tribunal was clear that the decision did not necessitate the conclusion that every person who voted in favour of Scottish independence in 2014 automatically shared the same beliefs as Mr McEleny. It does go to show, however, that discussion on political topics in the workplace and any subsequent action as a result, may draw protection from the 2010 Act.

In light of the Scottish Government’s recent proposal for a second referendum on Scottish independence, employers should ensure sensible management of the issue amongst their employees going forward, whether that be through informal discussions or written policies.

Ethan Laing is a trainee solicitor with Blackadders