Discrimination on the grounds of belief
MAY 2010
Recently Mr Nicholson won the right in the Employment Appeal Tribunal to pursue against his employer Grainger PLC his claims of unfair dismissal and discrimination on grounds of his beliefs.
This case has been publicised and indeed criticised for perhaps taking employment protection against discrimination a step too far.
The question has arisen of whether or not an employment tribunal has the jurisdiction and capability to decide if a certain type of belief is actually a philosophical belief for which an employee can claim protection. Some commentators have concluded that matters of how citizens in a democratic society live or do not live should be decided by the European Court of Human Rights and not by employment tribunals. Employment tribunals have traditionally and by law dealt with disputes within the workplace rather than making rulings on what is or is not an appropriate way of life within a democratic society. The development of discrimination law by the European Court of Human Rights has by necessity extended the deliberations of employment tribunals in this respect.
The purpose of this article is to consider and summarise an employment tribunal’s power to decide whether a particular belief amounts to one protected under the Employment Equality (Religion or Belief) Regulations 2003 (the “Regulations”).
The Facts
Mr Nicholson was employed by Grainger PLC, a major player in the residential property industry, as Head of Sustainability. He was dismissed by reason of redundancy in July 2008. Mr Nicholson claimed that his dismissal was not a genuine redundancy, was unfair and in fact because of his personal belief system – against anthropogenic climate change. As such he sought protection under the Regulations from such treatment.
Grainger PLC unsuccessfully sought to strike out his claims at the employment tribunal at a pre-hearing review on the basis that his beliefs did not amount to a philosophical belief under the Regulations. They lost. On Grainger PLC then appealing to the Employment Appeals Tribunal (the “EAT”), the EAT did in fact consider and apply the approach taken by the European Courts. The EAT considered the characteristics of a belief – in order to be protected by the Regulations –to be as follows:
“A belief must be weighty and be a substantial aspect of human belief and behaviour that has attained cogency, seriousness, cohesion and importance and be worthy of respect in a democratic society and is neither incompatible with human society nor in conflict with the fundamental rights of others.”
Mr Nicholson articulated the exact details of his belief, during the course of the appeal to the EAT, as follows:
“My belief in man-made climate change is not merely an opinion but a philosophical belief which affects how I live my life including my choice of home, how I travel, what I buy, what I eat and drink, what I do with my waste and my hopes and fears. I no longer travel by aeroplane, have eco-renovated my home, buy local produce, reduced my consumption of meat, compost my food waste and I encourage others to reduce their carbon emissions. I fear very much for the future of the human race, given the failure to reduce carbon emissions on a global scale.”
The EAT ruled against Grainger PLC, allowing Mr Nicholson to pursue his claims of unfair dismissal and unlawful discrimination on the grounds of his philosophical beliefs at the employment tribunal.
Mr Nicholson’s belief is the basis for his entire way of life. The key factor in this case, which has not been as widely recognised in public, is that the very nature of his belief put him arguably in direct conflict with his employer in carrying out his actual job as Head of Sustainability.
The case enabled the EAT to expand on and effectively define what would constitute a qualifying belief for the purposes of claims under the Regulations. The EAT’s approach follows the approach of the European Courts in deciding such matters.
An end to Mr Nicholson’s claims
Mr Nicholson had at this stage simply won the right to pursue his claims in the employment tribunal, rather than have them “struck out” without a hearing. In fact Mr Nicholson has now reached agreement with and settled his claims against Grainger plc, in return for payment of compensation. His claim is therefore withdrawn and will not go ahead in the tribunal. The case will therefore not be heard by an employment tribunal. Regardless of that, the judgment of the EAT stands as guidance and authority on such claims.
Protection for Employers
Tribunals and courts have acknowledged there is a difference between holding a belief and the effects or consequences of that belief on an employee’s behaviour. Direct discrimination is established if an employee has suffered less favourable treatment on the grounds of a particular religion or belief they may hold.
Direct discrimination would not normally be established if there has been no “less favourable treatment” but simply that an employer has had to take action (including disciplinary/dismissal) due to an employee’s behaviour in the work place.
The EAT in considering the matter of Mr Nicholson and Grainger PLC, have commented that whilst a racist or homophobic philosophy would contravene the general principle that a belief must not be objectionable to a democratic society (and therefore be excluded from protection under the Regulations) providing an employee’s behaviour at work is not affected by his or her personal belief (albeit racist or homophobic), the employer would not be able to justify indirect discriminatory action against the employee, in the absence of any objectionable behaviour.
The moral of the story ...
The extent of what can be a philosophical belief appears to be getting wider. Whilst this is being criticised by some commentators, the case of Mr Nicholson is clear authority that the strength of a belief system and the entire change to lifestyle, is a major factor in characterising the belief as falling within the protection of the Regulations.
Each case is scrutinised and considered upon its facts. Employment tribunals have traditionally been involved in matters relating solely to the workplace. However, employment legislation is now increasingly evolving to include issues of human rights within the workplace. The issues arising in the case of Mr Nicholson involve unfair dismissal, redundancy, discrimination (direct and or indirect with arguments of justification) on the grounds of philosophical belief. These are all issues which can be decided, in the context of employment disputes, by an employment tribunal.
If you would like any further information about the issues raised in this article please contact Alison Downie, or any other member of Goodman Derrick LLPs employment department on 0207 404 0606.
This guide is for general information and interest only and should not be relied upon as providing specific legal advice. |
