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.