For several years now it has been unlawful to discriminate against someone on the grounds of their religion or philosophical belief. There have been quite a few cases on discrimination on the grounds of religion, and it is usually quite clear what a religion is. Identifying a philosophical belief has been more of a challenge for the Tribunals, but they seem to have adopted a pretty wide interpretation to the meaning of the legislation.
In 2009 in the case of Grainger the Employment Appeal Tribunal held that a belief in climate change was capable of amounting to a philosophical belief and therefore enjoy the protection of the legislation. The Employment Appeal Tribunal set out some guidance on the tests which Tribunals should apply in assessing whether something does amount to a philosophical belief. The guidance suggested that the in order to enjoy protection a Tribunal should apply the following tests:
- the belief must be genuinely held;
- the belief must be a belief, not an opinion or viewpoint based on the present state of information available;
- the belief must be a belief which is a weighty and substantial aspect of human life and behaviour;
- the belief must attain a certain level of cogency, seriousness, cohesion and importance;
- the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others;
- the belief must “have a similar status or cogency to a religious belief”. However, it need not “allude to a fully-fledged system of thought”;
- the belief may be need not be shared by others;
- support of a political party will not amount to a philosophical belief, but a belief in a political philosophy or doctrine may qualify;
- a philosophical belief may (but need not) be based on science.
The Employment Appeal Tribunal said that this is not a check list, but rather guidance for the Tribunals to follow.
That guidance was followed by the Tribunals in the recent case of Maistry v BBC. In this case Mr Maistry was dismissed following performance management proceedings. He claimed that the real reason for his dismissal was that he held a belief in the “higher purpose” of public service broadcasting in promoting cultural interchange and social cohesion and that this belief amounted to a philosophical belief for the purposes of the legislation.
Applying the tests set out by the Employment Appeal Tribunal, The Employment Tribunal held that Mr Maistry’s belief was a philosophical belief within the meaning of the legislation. The reported decision on this case is simply as to whether or not the belief was protected, not whether Mr Maistry was discriminated against, which will be decided separately.
It is clear that beliefs which, on the face of it, are very personal and are very different from religions, are capable of being protected by these regulations. Employers must therefore be wary about ignoring concerns of employees which may qualify for protection.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243) 836840 or [email protected])