Protection for Philosophical Beliefs in the Workplace

The Equality Act 2010 (the Equality Act) provides protection for individuals from discrimination relating to a religion or belief they hold. Several cases over the past couple of years have considered what can qualify as a belief which attracts this protection, although some of them are only first instance Employment Tribunal (ET) decisions.

When is a philosophical belief protected?

In Grainger plc and others v Nicholson [2010] it was held that, for a philosophical belief to be protected under the Equality Act, it must:

• be genuinely held;
• be a belief as opposed to “an opinion or viewpoint based on the present state of information available”;
  
• be a belief as to a “weighty and substantial aspect of human life and behaviour”;
  
• attain a certain level of cogency, seriousness, cohesion and importance; and
  
• be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.
  

In Grainger, the Employment Appeal Tribunal (the EAT) held that a belief in man-made climate change and the alleged resulting moral imperatives, is capable, if genuinely held, of being a philosophical belief falling within the scope of the religion or belief protections of the Equality Act.

Vegeterianism

In Conisbee v Crossley Farms Ltd and others [2019], the Claimant was employed as a waiter and claimed that he had resigned after having been shouted at whilst at work. He said that he had been ridiculed at work because he was a vegetarian, and that colleagues had given him meat-based snacks to eat. He brought claims of discrimination and harassment on the ground of his philosophical belief in vegetarianism.

The ET held that vegetarianism did not amount to a belief protected by the Equality Act. The ET found that only two of the five Grainger criteria were met – the Claimant’s belief in vegetarianism was genuinely held, and it was worthy of respect in a democratic society, not incompatible with human dignity and did not conflict with the fundamental rights of others. However, the ET found, in relation to the other three Grainger criteria, that the Claimant’s vegetarianism:

• was “merely an opinion or viewpoint”, rather than a true philosophical belief. The ET did not consider it enough to have an opinion based on some real, or perceived, logic;
• was not a belief as to a weighty and substantial aspect of human life and behaviour but was a lifestyle choice. The Claimant made this choice based on his view that the world would be a better place if animals were not killed for food. The ET considered that this view was not sufficient to be considered a belief as to a weighty or substantial aspect of human life or behaviour; and
  
• did not attain the required level of cogency, seriousness, cohesion and importance, because the reasons for following a vegetarian diet differ between individuals. People might be vegetarian due to lifestyle choices, health considerations, diet, concern about the way animals are reared, or personal taste.
  

Ethical Veganism

In Casamitjana v League Against Cruel Sports [2020], the Claimant was dismissed for gross misconduct after he alerted his manager, and subsequently his colleagues, to the fact that his employer’s pension funds were being invested in tobacco companies and in pharmaceutical companies which engaged in animal testing.

The Claimant’s case was that he was an ethical vegan. Ethical veganism in the Claimant’s case involved having a belief that cruelty to animals is always wrong, and this informed more than just his food choices - for example, the Claimant chose not to take a bus for short distances on the basis that motor vehicles kill insects.

In contrast to the Conisbee decision, the ET found (although the employer chose not to dispute this issue) that veganism was a protected philosophical belief, because it clearly met all of the Grainger criteria. The parties subsequently reached a settlement before the ET could go on to consider the substantive merits of the claim.

Scottish Independence

Previous case law has indicated that political beliefs can fall within the scope of the protection provided by the Equality Act in relation to religion or belief - for example, democratic socialism as a key aspect of the values of the Labour party.

In McEleny v Ministry of Defence [2018], a Scottish ET was asked to consider whether the Claimant’s beliefs in i) Scottish independence, and ii) the social democratic values of the Scottish National Party (the SNP), were philosophical beliefs protected by the Equality Act. The Claimant claimed that he had been discriminated against by the Ministry of Defence, after it suspended him and revoked his security clearance shortly after he announced his candidacy for an SNP leadership election.

The ET found that the Claimant’s belief in Scottish independence was protected under the Equality Act. This belief was very deeply held, and was described as “unshakeable”. His belief had a substantial effect on his life, and also related to a fundamental question about how the people of Scotland are governed. How a country should be governed was held to be sufficiently serious to amount to a protected philosophical belief. The Claimant’s belief was coherent and had a sufficiently similar cogency to a religious belief. Finally, his belief was not incompatible with human dignity or in conflict with the fundamental rights of others.

However, the Claimant’s belief in the social democratic values of the SNP did not meet the Grainger criteria because the SNP as a political party represented a number of different policies, and his belief in actual fact centred around Scottish independence, not the political party whose core policy it was to implement Scottish independence.

These decisions suggest that membership of a political party will not be protected of itself, but that a belief in the political philosophy upon which a political party is based might, in some circumstances, be capable of protection under the Equality Act.

In this regard is worth noting that political opinions and affiliations do have special protection in the context of the ability of employees to claim unfair dismissal. In cases where the reason or principal reason for the dismissal “is, or relates to, the employee's political opinions or affiliation”, the employee does not need to have the usual two complete years’ service in order to bring an unfair dismissal claim. This does not mean that a dismissal for political affiliations is automatically unfair - the fairness of the dismissal must still be judged in the usual way.

Transgender Identity

In Forstater v CGD Europe and others [2019], the Claimant was engaged by CGD Europe under a series of consultancy agreements. The arrangement terminated at the end of the term and was not continued. The Claimant claimed this was because she had published some commentary and opinions on Twitter, making statements relating to transgender issues. She claimed that she was discriminated against as a result of a philosophical belief.

The Claimant’s belief, which she said should be protected under the Equality Act, was that sex is biologically immutable, that there are only two sexes (male and female), which are assigned at birth, and it is not possible to change from one to the other. Her belief was, she said, based on science. She would not accept that a trans woman was a woman or a trans man a man, even if they held a Gender Recognition Certificate.

The ET found that the Claimant’s belief was not a protected philosophical belief, on the basis that it did not meet the final Grainger criterion that the belief must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

The ET was particularly influenced by the fact that the Claimant denied the right of a person with a Gender Recognition Certificate to be the sex to which they had transitioned, which it considered was not compatible with the human rights of others established by the European Convention on Human Rights and given effect through the Gender Recognition Act.

In Mackereth v The Department for Work and Pensions & another [2019], the Claimant was a doctor who carried out health assessments for the Department for Work and Pensions (the DWP). He refused to address transgender patients by their chosen pronoun on account of his Christian faith. He was dismissed and brought a claim against the DWP.

The ET found that the Claimant was not discriminated against on the grounds of religion or belief. The ET accepted that his Christianity was protected under the Equality Act. However, having considered the Grainger tests, the ET held that the doctor’s particular beliefs that God only created males and females and that a person cannot choose their gender, his lack of belief in transgenderism, and his “conscientious objection” to transgenderism, were views incompatible with human dignity which conflicted with the fundamental rights of others. Those beliefs were therefore not protected religious or philosophical beliefs under the Equality Act.

In the recent case of Higgs v Farmor’s School [2020] the Claimant was employed by a school as its pastoral administrator and work experience manager. A complaint was made about the Claimant after she posted various content on her social networking page, which the complainant asserted was homophobic and prejudiced against the LGBT community. Following a disciplinary process the Claimant was dismissed for gross misconduct.

The Claimant brought a claim asserting direct discrimination and harassment, claiming that she had been dismissed as a result of the beliefs which she held; in particular, her lack of belief in “gender fluidity” and her lack of belief that someone could change their biological sex or gender. The ET considered whether those beliefs satisfied the Grainger criteria, referring to the previous (but not binding) Forstater and Mackereth decisions in its consideration of the final Grainger test, which was whether the views were worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

In contrast with the ETs in both of those previous cases, the ET concluded that the Claimant’s beliefs did meet the final Grainger criterion. Unlike in those cases, the ET reasoned that the Claimant in this case would not necessarily manifest her beliefs by “misgendering” individuals who had transitioned (for example by using their pre-transition pronouns), and therefore her beliefs would not necessarily result in unlawful action by her. It considered that whilst her views might be offensive and upsetting to some people, on balance her beliefs did satisfy the final Grainger test and therefore were protected by the Equality Act. The ET went on to conclude on the facts of the dismissal that the Claimant was not directly discriminated against nor harassed.

All three of these decisions have been appealed to the EAT.

Stoicism

In Jackson v Lidl Great Britain Ltd [2020] the Claimant claimed, amongst other matters, that he had a protected philosophical belief in Stoicism. The ET considered at a preliminary hearing whether this belief could meet the Grainger criteria.

The Claimant explained that he had a strong interest in philosophy and in particular, the philosophical belief system of Stoicism. His belief was that there is an objective moral reality to which he is subject, and ethical “values” (wisdom, courage, moderation and justice) to which he must adhere. He explained that he considered these values in every act he does, rather than determining whether something is ethical in a utilitarian or consequentialist manner. The ET accepted that this belief system underpinned almost everything the Claimant did in his life. The Claimant also explained that it was inconsistent with Stoicism to display emotions, and that the consequences of what he says or does would not stop him from saying or doing it.

The ET concluded that the Claimant’s beliefs clearly met the first four Grainger criteria. The Claimant’s beliefs based on Stoicism:

• were genuinely held;
• were not simply an opinion or viewpoint – the Claimant had a strong interest in and adherence to this philosophical belief system for a number of years, and his beliefs clearly transcended merely holding an opinion;
  
• concerned a weighty and substantial aspect of human life and behaviour – the ET was persuaded that this was the case in attempting to answer the most profound questions that can be asked; and
  
• attained a level of cogency, seriousness, cohesion and importance – the Claimant applied his belief consistently and with a guiding purpose.
  

In relation to the final criterion, the Claimant’s case was that due to his beliefs, he did not consider the consequences of his actions to be important. The ET therefore considered whether having a conscious disregard for the consequences of saying or doing something which was likely to cause offence was consistent with the values of a democratic society. It concluded that the Claimant’s beliefs might well cause offence, but that did not make them unworthy of respect in a democratic society, incompatible with human dignity or in conflict with the fundamental rights of others. The Claimant’s belief in Stoicism was therefore capable of being protected by the Equality Act.

The statutory human or moral right to own copyright and moral rights of creative works

In Gray v Mulberry Co (Design) Ltd [2018], the Claimant was employed as a market support assistant. In her spare time, she was a film-maker and writer. She was asked during her employment to sign a standard copyright agreement, which required the employee to disclose and/or assign copyright for any works created during the course of her employment to her employer. She refused, even when the employer narrowed the wording to only work relating to its business. She was dismissed with notice. She subsequently brought a claim for discrimination under the Equality Act on the basis that she was dismissed as a result of her belief in “the statutory human or moral right to own the copyright and moral rights of her own creative works and output”.

The ET applied the Grainger criteria and found that the fourth criterion - that the belief attain a certain level of cogency, seriousness, cohesion and importance - was not met.

The Claimant appealed against the decision to the EAT, which dismissed the appeal on the basis that the ET had not set the bar too high when determining whether a belief met the fourth criterion. Furthermore, the question of whether a belief met the fourth criterion was a question of fact for the ET to determine and it had reached a decision which it was entitled to reach on the evidence before it. Although the Claimant’s refusal to sign the agreement was dictated by her belief, she had not made that known to her employer, and the ET was correct to conclude that her belief was not sufficiently cohesive to form a cogent philosophical belief.

Conclusions

Although these cases deal with very different types of beliefs, they demonstrate that the ET will apply the principles set out in Grainger to the particular facts of each case, based on the individual belief being considered and how it applies to the individual’s life and behaviour as a whole.

In practice, this will remain a challenging area for employers to address. Employers should ensure that they have appropriate guidance and policies in place, and that they offer training to their employees to ensure that they can prevent, or at least minimise, disagreements and disputes within their workforce which might contain a diverse range of religions and beliefs.