John Lee: Employers have to be careful of beliefs

Strong environmentalist views are legitimate philosophical beliefs so come under the law. Picture: Getty Images

THE ever-ruffled feathers of Great Britain’s employers were set all a-flutter recently by the Employment Appeal Tribunal (EAT) setting alight concerns of the further extension of discrimination protections for employees arising from so called “philosophical” beliefs.

The protections were introduced in 2003 legislation and are now found in the Equality Act 2010. This regulates discrimination relating to religion, religious beliefs or philosophical beliefs. The original Regulations protected “religious beliefs or similar philosophical beliefs”. 2007 amendments removed the reference to “similar”. Critics at the time argued this ‘muddied the waters’ and extended the scope of the legislation, potentially to extreme political persuasions.

A watershed moment arrived in 2009 in Grainger Plc v Nicholson, again heard by the EAT. Tim Nicholson, pictured, who was the Head of Sustainability at Grainger Plc, held strong environmentalist views, relating to climate change and the reduction of carbon emissions. He objected to various practices arising from his beliefs, including air travel.

He challenged his later selection for redundancy, alleging this in fact related to his “philosophical beliefs”, defined as a “strongly held philosophical belief about climate change and the environment which was not merely an opinion but … which affects how I live my life… choice of home, how I travel, what I buy, what I eat and drink, what I do with my waste” etc.

The EAT upheld his argument and offered guidance, setting out various fundamental conditions which require to be satisfied before a philosophical belief will qualify for protection.

The case did little to assuage doubters who instead raised arguably legitimate concerns as to where exactly the line is to be drawn in identifying protected “philosophical” beliefs. The Government Equalities Office was quick to respond, in March 2010, announcing that views based on “scientific – or indeed political – theories” were not considered to be capable of protection and that neither was this the legislation’s intention. Critics suggested an unforeseen consequence was that those with fundamentalist, and perhaps morally objectionable, beliefs might qualify for protection.

In Grainger’s wake, a steady stream of decisions have flowed, further rankling with employers. Employment tribunals have held that fervent oppositions to fox hunting and hare coursing arising from a belief in the sanctity of life qualifies for protection, as have beliefs in the need to engender a desire and commitment to serve the community for the common good, that lying is always wrong, in spiritualism, life after death and the ability of mediums to contact the dead and that public service broadcasting should promote cultural interchange and social cohesion.

In contrast, claims that beliefs the 9/11 and 7/7 attacks were so called “false flag operations”, that poppies should be worn by everyone in early November and in extreme political and Marxist/Trotskyist ideals, have since been rejected. It is fair to say, however, that the notion of protected “philosophical beliefs” has and continues to vex employment tribunals.

Earlier this month, the EAT again grappled with this concept in Harron v Dorset Police. Mr Harron submitted a number of proposed changes to the practices of Dorset Police with the intention of saving public money. He considered this made him unpopular and that he suffered a number of detriments, including a failure to consider him for promotion and his job being jeopardised. He claimed discrimination relating to his alleged “profound belief in the proper and efficient use of public money in the public sector”.

An employment tribunal disagreed, deciding these were insufficient to amount to a “belief” and, being confined to the workplace, do not relate to a weighty aspect of human life nor have the requisite standard of seriousness and importance. The EAT overturned this, considering the tribunal had ‘set the bar too high’ and sent the case back for reconsideration.

Harron has led to something of an employers’ backlash in concerns this amounts to a further and somewhat ‘open ended’ extension of the concept of “philosophical beliefs”, worthy of legal protection. However, complaints that just about anything may qualify may be misplaced, at least for now. Harron will be reconsidered by the employmenttTribunal before a judgment is made.

In the meantime, employers may be excused for remonstrating that the threshold now appears set far lower than had been anticipated back in 2003 and may be slipping further still. Of all the legally muddied waters they must traverse, the definition of “philosophical belief” in our discrimination legislation is arguably of the most troubled. Employers must therefore tread cautiously in managing perhaps the sometimes vehement, the opinionated or the apparently self-interested views and actions of their employees. Those may just be protected beliefs.

• John Lee is an employment law partner with Lindsays