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The evolutionary tract of philosophical beliefs constituting protected characteristics in British Discrimination Law

Jo Carby-Hall
p. 248-253
Cet article est une traduction de :
Croyances philosophiques et droit des discriminations [fr]

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  • 1 Namely, age, disability, gender reassignment, marriage and civil partnership, pregnancy and materni (...)
  • 2 People are protected in the workplace, public services, (e.g. National Health Service, educational (...)
  • 3 Discrimination may take place in four ways, direct and indirect discrimination, harassment and vict (...)
  • 4 Under section 10 of the Equality Act 2010.

1There has been in recent years an important case law evolution of philosophical beliefs qualifying as protected characteristics which constitute one of the most interesting developing areas of discrimination law. There are nine protected characteristics under the Equality Act 20101 which protects people2 against discrimination3. This article is more modest. It proposes to deal with only one of the nine protected characteristics, namely that of philosophical belief for it is in this very area that rapid evolution is taking place. The 2010 Act does not define the term philosophical belief. It provides4 that « Belief means any religious or philosophical belief and a reference to the belief is a reference to a lack of belief ». The Act has left it to the tribunals and courts to define the notion of philosophical belief.

  • 5 In R (Williamson et al v Secretary of State for Education and Employment even though he suffered di (...)

2Lord Nicholls5 sowed the seeds of the definition when he said that :

« a belief must satisfy some modest, objective minimum requirements (…). The belief must be consistent with basic standards of human dignity or integrity (…). The belief must relate to matters more than merely trivial. It must possess an adequate degree of seriousness and importance (…).it must be a belief on a fundamental problem (…). The belief must also be coherent in the sense of being intelligible and capable of being understood (…) But again too much must not be demanded in this regard (…). Overall those threshold requirements should not be set at a level which would deprive minority beliefs of the protection they are intended to have…».

  • 6 [2010] ICR 360 (EAT).
  • 7 Ibid., § 24 of his judgment. The learned judge also considered the European Convention of Human Rig (...)

3Mr Justice Burton in Grainger Plc v Nicholson6 following Lord Nicholls dictum in Williamson endeavoured to set out the five limitations or criteria of the definition of « philosophical belief ». He said7 « (i) The belief must be genuinely held, (ii) It must be a belief and not (…) an opinion or viewpoint based on the present state of information available, (iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour, (iv) It must attain a certain level of cogency, seriousness, cohesion and importance, (v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not in conflict with the fundamental rights of others ».

  • 8 For example, the importance of not wearing a poppy in November (Lisk); homosexuality being against (...)

4Although there have been numerous cases which have failed to meet the philosophical belief criteria8, many have succeeded in doing so. A sample of these latter will be discussed below. It should be noted that all cases feature with other than philosophical belief issues such as redundancy, wrongful or unfair dismissal. Only the philosophical belief aspects of the cases are dealt with in a skeletal manner in this article.

5In Grainger’s case, mentioned above, a belief in man-made climate change and the resulting moral imperatives, is capable if genuinely held, of being a philosophical belief. The brief facts are that the claimant, Mr Grainger, who was the head of sustainability of the company, was made redundant. He claimed that his beliefs on climate change had contributed to his dismissal which was discriminatory because he asserted his beliefs on climate change, he had not agreed with the company’s carbon emissions policy, he was obstructed from carrying out his duties by senior management and was deprived access to enable him to calculate the company’s footprint :

Furthermore, he claimed that the company executives travelled in most highly polluting cars and when the CEO forgot his smart phone while abroad, he ordered an employee to catch a plane to retrieve it. The Employment Appeal Tribunal upheld the Employment Tribunal’s verdict that the claimant’s views fulfilled all five criteria and therefore constituted a philosophical belief.

  • 9 Case no. ET/1313142/2010.

6In D. Maistry v British Broadcasting Corporation9 the claimant’s belief was that broadcasting is founded on the philosophy of « public space », a space which is neither government, nor the state, nor purely governed by commercial transactions.

7A person can thus encounter culture, education and debate and where such person can share experiences. The claimant’s view of public space has been given the cohesion, cogency and importance by philosophers such as Jurgen Habermas and Dewey. The claimant’s life’s record was such that the judge had no doubt in finding that the five criteria in Nicholson were fulfilled.

  • 10 Case no. ET/3105555/2009.

8Similarly, a belief on the sanctity of life, namely fox hunting and hare culling, was found to constitute a philosophical belief in Hasham v Milton Park (Dorset) Ltd t/a Orchard Park10. The claimant lived and worked to prevent cruelty to animals and his beliefs affected every aspect of his life. Apart from the food he ate and the clothes he wore, his belief affected the work he did and places he visited and how he spent his time and resources.

9The judge found the claimant’s evidence to be credible and having applied the five criteria established by case law concluded that the claimant’s philosophical beliefs qualified for protection under the legislation.

  • 11 Case no. ET/2200088/2017.
  • 12 Referring to the former leader of the Labour Party, Mr Corbyn who had very left-wing tendencies.

10Republicanism as a philosophical belief was upheld in A Gibbins v British Council.11 The claimant believed that the UK should not be ruled by a hereditary monarch and that it should be a democratic and secular republic. She developed this belief over time from involvement in antiracism demonstrations, the death of Blair Peach, the influence of Tony Benn a staunch republican whose books she read, through contact with him, trade union and Labour Party membership and Amnesty International and much more. She had atheist and socialist beliefs and became known as « the quiet Corbynista »12.

11The judge posited « We understand the claimant’s belief as an identification with opposition to inherited wealth and privilege of which the monarchy is (…) and wider system of rule by an aristocratic elite. This sits with left wing views on other matters of social organisation (…). The belief is also a belief on how we should be governed, weighty and substantial (…). We concluded that it was a philosophical belief, such as its holders are to be protected from discrimination ».

  • 13 Case no. ET/701407/2013.

12The claimant in C. Oliver v Department of Work and Pensions13 stated that the Labour Party is not simply an organisation; it also encapsulates and enshrines a set of beliefs known as democratic socialism.

13The judge considered the five criteria setting out the limits placed on the definition of philosophical belief and said :

« I find (…) that this amounts to a belief and not just an opinion and viewpoint (…) is a belief to a weighty and substantial aspect of human life and behaviour; and which has attached a certain level of cogency, seriousness, cohesion and importance (…). It follows that the constituent elements of a philosophical belief are met. I find the claimant’s belief in “democratic socialism” is within the definition of philosophical belief and is sufficient to be potentially protected by s.10 of the Equality Act 2010 ».

  • 14 [2010] UKEAT 0087/10 and [2010] EWCA Civ. 534 before Stanley Burton L.J.
  • 15 The decision of the Employment Tribunal on the claimant’s philosophical belief was upheld by the Em (...)

14Mr Alan Power in A.Power v Greater Manchester Police Authority14 was a « committed spiritualist » who held genuine and bona fide beliefs on the existence of psychic, spiritualism and paranormal phenomena. The Employment Tribunal held15 that the claimant’s spiritualist and psychic beliefs, God and eternal life were capable of constituting a religious and philosophical belief for the purposes of the legislation.

15The judge traced the history of the Spiritualist church and the fact that the claimant’s belief in afterlife and communicating with spirits was worthy of respect in a democratic society and had the necessary cogency, seriousness, cohesion and importance such as to amount to a philosophical belief.

  • 16 Case no. ET/2501234/2012.

16Hawkins v United Utilities Ltd.t/a Unicorn16 unlike the other cases was decided on supposition. The claimant was dismissed for failing to meet his targets. He claimed that the real cause for his dismissal was his Christian beliefs not to tell lies. He alleged that he was advised to lie and heard some of his colleagues lie to potential customers on the telephone thus deceiving them. The claimant lost his case because he was unable to produce sufficient evidence to support his claim that the employer required him and his colleagues to lie to customers and thus deceive them.

17The Employment Tribunal did however say that a well-founded belief that a person should not tell lies and thus deceive potential customers to obtain sales would qualify as a philosophical belief under s.10 of the Equality Act 2010 if the five criteria in Nicholson are met.

  • 17 Case no. UKEAT/2006/14/MC.

18Commitment to public services can qualify as a philosophical belief according to J. Anderson v Chesterfield High School17. The claimant inspired by his parents and a local community activist had a deep-seated belief and conviction to serve the community for the common good. His belief in public service made him participate in local government and he became a Liverpool councillor. He served on the board of Liverpool Vision which is dedicated to the economic development of Liverpool. As Mayor he contributed to the common good of that city including the return of cruise liners to the port, the Oliver King Foundation, opposition to the « bedroom tax » and much more.

  • 18 Case no. UKEAT/0234/15/DA.

19The claimant in M Harron v Chief Constable of Dorset Police18 had a belief that the public service was improperly wasteful of money. He felt compelled to express those beliefs even though he suffered discrimination for his philosophical beliefs. With the intervention of the Employment Appeal Tribunal such belief was held to constitute a philosophical belief.

  • 19 Case no. ET/4105347/2017 with a judgment date of 9th February 2019 as it was a complex case dealing (...)
  • 20 Ibid., § 4-6 of the judgment.

20The Employment Tribunal in C. McEleny v Ministry of Defence19 found that the claimant’s belief in Scottish independence amounts to a philosophical belief within the meaning of s.10 of the Equality Act 2010 and relied upon by the claimant as a protected characteristic for the purposes of claiming direct discrimination. The judge said20 :

« based on the evidence (…) I found that the claimant believes that Scotland should be an independent country (…) that the claimant supports the SNP because achieving independence is its principal policy (…) the claimant has believed in the right of the Scottish people to self-determination since childhood (…) the fact that there was a referendum in which 1.5 million of the Scottish electorate voted in favour » all of which contributed to it qualifying as a philosophical belief.

  • 21 Case no. ET/3331129/2018 heard on 2nd January 2020.

21The claimant in J. Casamitjana Costa v The League Against Cruel Sports21 was not only on a vegan diet but also was against the use and abuse of animals for any purpose. Ethical veganism thus controlled every aspect of his life.

22The tribunal concluded that ethical veganism, in this case, was worthy of protection as a philosophical belief for the claimant lived his life in a manner in which many would consider to be extreme. The relevant factor in this case was the strength of the claimant’s beliefs and the pervasiveness of those beliefs in all aspects of his life.

23The decision of the tribunal in this case does not indicate a desire to protect all or even a majority of employees who are vegan, but only employees whose views and actions will meet the highest level of ethical veganism. This is a high threshold and the chances of employers encountering employees of this degree of adherence to such a belief are rare. This may be said of all such cases involving philosophical beliefs.

24The above is a selection of cases which have proved to constitute a philosophical belief, there are many others which do not allow for further discussion because of limitations of space. Cases brought on the issue of philosophical beliefs can be complicated.

25The claimant needs to show evidence to, and thus convince, the tribunal that the particular belief held qualifies as a philosophical belief which satisfies the provisions of the Equality Act 2020 s. 10 (2). The claimant, having proved the factual situation, it is for the tribunal to decide whether the facts of the case qualify under the defining five criteria hurdle of the legal definition as provided for by Mr Justice Burton in the Nicholson case. The concept of philosophical belief is one of the most interesting areas for the development of discrimination law. Tribunals have consistently emphasised the importance of the individual facts in determining whether the claimant holds a philosophical belief. This could mean that the range of protected beliefs is more limited that than the cases seem to suggest, for many claimants may fall short of the level of conviction required.

26The establishment of a philosophical belief capable of protection under discrimination law is only the first step. As Employment Judge Hughes said in Maistry « the real battleground is whether there has been less favourable treatment and, if so, whether it was on grounds of the belief related to ».

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Notes

1 Namely, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, sex, sexual orientation and religion and belief.

2 People are protected in the workplace, public services, (e.g. National Health Service, educational establishments) organisations which provide services, (e.g. cinemas, shops, restaurants) transport, clubs and associations and local authorities and government departments.

3 Discrimination may take place in four ways, direct and indirect discrimination, harassment and victimisation.

4 Under section 10 of the Equality Act 2010.

5 In R (Williamson et al v Secretary of State for Education and Employment even though he suffered discrimination on grounds of his philosophical beliefs. [2005] AC 248 UK HL 15 at para. 23 of his judgment.

6 [2010] ICR 360 (EAT).

7 Ibid., § 24 of his judgment. The learned judge also considered the European Convention of Human Rights, art. 9 case of Campbell and Cosans v United Kingdom [1982] 4 EHRR 293 from where criteria (iv) and (v) above originate. See too the Code of Practice of the Equality and Human Rights Commission which repeats those criteria.

8 For example, the importance of not wearing a poppy in November (Lisk); homosexuality being against God’s law and the Holocaust having never happened (Ellis); the 9/11 and 7/7 terrorist attacks being government led conspiracies (Farrell); refusal to place children for adoption, care or fostering with same sex partners (McClintock); refusal to sign a copyright agreement (Gray); wearing a silver cross round a claimant’s neck against British Airways rules (Eweida); there are only two sexes and therefore sex is biological and immutable (Forstater); vegetarianism is not a philosophical belief (Conisbee) political correctness (Dunn); refusal to identify patients by their chosen sex when carrying out medical assessments (Mackereth).

9 Case no. ET/1313142/2010.

10 Case no. ET/3105555/2009.

11 Case no. ET/2200088/2017.

12 Referring to the former leader of the Labour Party, Mr Corbyn who had very left-wing tendencies.

13 Case no. ET/701407/2013.

14 [2010] UKEAT 0087/10 and [2010] EWCA Civ. 534 before Stanley Burton L.J.

15 The decision of the Employment Tribunal on the claimant’s philosophical belief was upheld by the Employment Appeal Tribunal and the Court of Appeal. The EAT and Court of Appeal dealt with other matters raised in the case.

16 Case no. ET/2501234/2012.

17 Case no. UKEAT/2006/14/MC.

18 Case no. UKEAT/0234/15/DA.

19 Case no. ET/4105347/2017 with a judgment date of 9th February 2019 as it was a complex case dealing with other issues.

20 Ibid., § 4-6 of the judgment.

21 Case no. ET/3331129/2018 heard on 2nd January 2020.

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Référence papier

Jo Carby-Hall, « The evolutionary tract of philosophical beliefs constituting protected characteristics in British Discrimination Law »Revue de droit comparé du travail et de la sécurité sociale, 4 | 2021, 248-253.

Référence électronique

Jo Carby-Hall, « The evolutionary tract of philosophical beliefs constituting protected characteristics in British Discrimination Law »Revue de droit comparé du travail et de la sécurité sociale [En ligne], 4 | 2021, mis en ligne le 31 décembre 2021, consulté le 17 juin 2025. URL : http://journals.openedition.org/rdctss/2780 ; DOI : https://doi.org/10.4000/rdctss.2780

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Jo Carby-Hall

University of Hull

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