A belief in a 'conspiracy theory' surrounding 7/7 and 9/11 terrorist attacks is not a philosophical belief under UK discrimination law

In Farrell v South Yorkshire Police Authority, an Employment Tribunal has considered whether a dismissed employee’s belief in a conspiracy theory surrounding a ‘New World Order’ and the terrorist attacks in 2001 and 2005 constituted a philosophical belief, such as to attract protection under the Employment Equality (Religion or Belief) Regulations 2003 (“the Regulations”). The Tribunal found that, although Mr Farrell’s beliefs did meet most of the requirements set out by the Employment Appeal Tribunal in the case of Grainger plc and others v Nicholson (finding that the beliefs were genuinely held, they related to weighty and substantial aspects of human life and behaviour, they were ‘beliefs’ rather than mere opinions, and they were not incompatible with human dignity), they did not attain a sufficient level of cogency or cohesion. As such, the Tribunal held that Mr Farrell’s beliefs did not satisfy the definition of a ‘belief’ under the Regulations and so therefore were not capable of protection against discrimination.

What happened in this case?

Mr Farrell was employed as a Principal Intelligent Analyst by the South Yorkshire Police Authority. He claimed to hold a belief in a ‘New World Order’, under which a ‘global elite’ (including the UK and US governments and world financial institutions) were seeking to “introduce a secret satanic ideology to enslave the masses and claim control of the world’s resources”. To this end, he believed in particular that the UK and US governments perpetrated the terrorist attacks of 11 September 2001 and 7 July 2005.

During his employment, Mr Farrell was asked to prepare a report for the South Yorkshire Police area, analysing the level of threats posed by various crimes (including terrorism). Mr Farrell made various comments in his report, specifically referring to his views regarding the New World Order and, in particular, his belief that the terrorist attacks in 2001 and 2005 were “sham” operations authorised by the US and UK governments “to divert attention from their own secret scheming and evil ways of the elite”. In light of the content of his report, Mr Farrell was invited to a disciplinary hearing. The South Yorkshire Police Authority took the view that Mr Farrell’s expression of his views was incompatible with his employment and that his position was therefore untenable. Mr Farrell was consequently dismissed.

Mr Farrell brought a claim in the Employment Tribunal for unfair dismissal and unlawful discrimination on the ground of his beliefs.     

The Employment Tribunal’s decision

The case of Grainger plc and others v Nicholson (reported in a previous blog) identified five criteria to be satisfied for a belief to attain protection under the Regulations:

  1. The belief must be genuinely held.
  2. It must be a belief and not an opinion or viewpoint based on the present state of information available.
  3. It must be a belief as to a weighty and substantial aspect of human life and behaviour.
  4. It must attain a certain level of cogency, seriousness, cohesion and importance.
  5. It 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 Tribunal dealt with Mr Farrell’s claim by considering these criteria, finding that criteria 1-3 and 5 above were satisfied. The case therefore concentrated on whether point 4 was satisfied, i.e. whether Mr Farrell’s belief was sufficiently cohesive and cogent.

On this point the Tribunal noted that the Employment Appeal Tribunal in Grainger had unfortunately not been specific about the level of cogency or cohesion required, simply referring to a “certain level”. The Tribunal also recognised that it should not expect too much from a Claimant in demonstrating the coherence of his beliefs, pointing to the fact that religious beliefs, for example, are not always susceptible to rational justification or explanation. Finally, the Tribunal also found that it was appropriate (and indeed important) to objectively scrutinise the nature of the Claimant’s beliefs, in order to consider whether the test of cogency and coherence was indeed met. In this regard, the Tribunal noted that, given that Mr Farrell’s beliefs related to matters where there is a substantial amount of evidence within the public domain (unlike, for example, a belief regarding the existence of a god), the scrutiny put on those beliefs must take into account such available evidence.

Taking all this into account, and considering Mr Farrell’s evidence as to the nature of his beliefs, the Tribunal found that Mr Farrell’s conspiracy theories simply failed to meet any minimum standard of cogency or coherence, and in fact, applying an objective test, were “absurd”. 

The Tribunal did not doubt the sincerity of Mr Farrell’s beliefs, but nevertheless found them not to constitute the definition of belief within the Regulations. Mr Farrell’s claim for discrimination on those grounds could not therefore continue. 

What this decision means to employers

This is the latest in a line of cases considering the question of what constitutes a belief for the purposes of the Regulations (and now the Equality Act 2010). Recent Tribunal decisions have meant that various beliefs (concerning, for example, climate change, the "higher purpose" of public service broadcasting, and anti-foxhunting) have been found to constitute philosophical beliefs under the Regulations. Whilst the trend of such cases indicated that the definition of a philosophical belief was perhaps wider than originally perceived, this current case demonstrates that Tribunals will still need to carefully consider each claim on a case by case basis. It is not a forgone conclusion that even a strong and genuinely held belief will attain protection under the Regulations, and it will be irrelevant how passionately an individual believes in their cause, if that cause is objectively incoherent. 

Employers might take reassurance from this, and from the fact that Tribunals are permitted to analyse the nature of the belief itself, rather than merely the extent to which the Claimant believes in it. It is also worth remembering that establishing that a belief is capable of protection is only the first step: a Tribunal then has to consider whether an employer unlawfully discriminated by reference to that belief. This is only a Tribunal decision and so is not legally binding, but is nevertheless perhaps indicative of how future Tribunals may approach such cases.  

However, employers do need to continue to exercise care when taking action against someone who has a strongly held belief, or treating such person differently from any other employees, as in many cases the individual concerned may well be able to meet all five criteria set out in Grainger. It is worth ensuring that equal-opportunities policies and staff training take into account various religions and widely-held beliefs, as well as ensuring that sufficient measures are in place to prevent harassment or victimisation of employees on all protected grounds, including belief.

Guidance on discrimination on the grounds of philosophical belief

In Grainger plc and others v Nicholson the EAT has given guidance on what might qualify as a ‘philosophical belief’ for the purposes of the Employment Equality (Religion or Belief) Regulations 2003 (the “Regulations”). In the case, the Employment Appeal Tribunal (“EAT”) held that a belief in the existence of man-made climate change and the need to cut carbon emissions was capable of amounting to a philosophical belief which would qualify an employee holding that belief for protection from discrimination under the Regulations. However, importantly, the EAT made clear that it would be necessary for any claimant to establish that their adherence to the philosophical belief in question is genuine.

 What happened in this case?

Mr Nicholson worked as Head of Sustainability at Grainger plc until he was dismissed in July 2008. Grainger plc asserted that it had dismissed Mr Nicholson on the grounds of redundancy. However, Mr Nicholson subsequently brought claims including unfair dismissal and discrimination under the Regulations on the grounds that he had actually been dismissed because of his belief in man-made climate change.

As a preliminary point in the Tribunal, the question arose as to whether Mr Nicholson’s belief constituted a philosophical belief for the purposes of the Regulations. Mr Nicholson stated the following in his witness statement: “I have a strongly held philosophical belief about climate change and the environment. I believe we must urgently cut carbon emissions to avoid catastrophic climate change. It 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”. Without requiring cross-examination on Mr Nicholson’s evidence in this regard, the Employment Judge decided that his belief was a philosophical belief for the purposes of the Regulations.

Grainger plc appealed the Tribunal’s decision to the EAT.

The EAT’s decision

The EAT identified the following criteria which must be satisfied for a belief to be such a belief under the Regulations:

  • The belief must be genuinely held.
  • 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, not be incompatible with human dignity and not conflict with the fundamental rights of others.

The EAT also made clear that it is not necessary for the belief to be overarching in the sense that it impacts on every area of an individual’s life. On this basis, specific beliefs such as pacifism and vegetarianism may be capable of protection under the Regulations. In addition, the EAT suggested that, while support of a political party may not fulfil the relevant criteria, a belief in a political philosophy such as socialism or capitalism may well qualify for protection.

On considering the above criteria the EAT found that the Tribunal had been entitled to conclude that Mr Nicholson’s pleaded beliefs were capable of qualifying for protection under the Regulations. However, it would still be necessary to establish that he also genuinely held that belief in order to determine whether he was so protected. The EAT indicated that it would be necessary to hear further evidence and have cross-examination on this issue to make such a finding.

In reaching its decision, the EAT also made clear that philosophical beliefs which are based on science are not disqualified from protection under the Regulations. Accordingly, a belief in Darwinism could qualify for protection as a philosophical belief in much the same way that a belief in Creationism would likely qualify as a religious belief for the purposes of the Regulations. While this principle appears to be consistent with the EAT’s finding that a belief in man-made climate change might qualify for protection, it appears to sit uncomfortably with the principle stated above that a protected philosophical belief must be more than an opinion or viewpoint based on the present state of information available (something which scientific beliefs often are).

What this decision means for employers

The EAT’s decision in Grainger plc and others v Nicholson certainly suggests that the meaning of “philosophical belief” under the Regulations is wider than many commentators initially envisaged. However, potential claimants will need to clear a number of hurdles in order to succeed in a claim of philosophical belief discrimination under the Regulations.

As the EAT made clear, the claimant must establish that they genuinely held the asserted belief, in addition to establishing that the nature of it is such as to be capable of qualifying for protection under the Regulations. Furthermore, it will be necessary for claimants to demonstrate that they were discriminated against directly or indirectly by reason of their asserted philosophical belief. A claim under the Regulations that the claimant has been dismissed because of his belief would fail if the employer could establish he had been dismissed for some other reason. 

Moreover, it is important to remember that claimants will need to do more than merely show that the employer acted in a manner that is inconsistent with their beliefs. For instance, a failure by an employer to implement a climate change conscious worker’s recycling proposal is unlikely to amount to unlawful discrimination when the employer has good business reasons for rejecting the suggestion and otherwise acts lawfully in doing so. A limited number of employers may also be able to justify what would otherwise be unlawful discrimination on the basis that they have a genuine occupational requirement for a worker to be of a particular religion or belief or where the conduct complained of is needed to comply with the religious or belief-based ethos of the organisation.

Accordingly, the EAT’s findings may not open the floodgates for claims under the Regulations and it will be necessary to see how the Courts approach this issue in the future to gauge the true impact of the decision. In the meantime, it is important for employers to remain vigilant when taking decisions which are likely to have a disproportionate impact on workers or candidates with strongly held philosophical beliefs, as well as those individuals with religious beliefs. Apart from dismissal claims, one of the most likely types of claim will be harassment so it is worth revisiting any bullying and harassment policies to ensure that they take account of widely held beliefs.