Blog post written by Brabners LLP
There have been an increasing number of cases in the Employment Tribunal about what amounts to a protected “philosophical belief” within the meaning of the Equality Act 2010.
Employers are prohibited, under the Equality Act 2010, from discriminating against an employee, worker or job applicant on the grounds of their religion or philosophical belief. Religions are generally quite easily definable. But what is a philosophical belief?
The Employment Appeal Tribunal recently decided, in the case of Forstater v CGD Europe and others, that gender-critical beliefs, including a belief that a person’s sex is a “material reality” which should not be conflated with gender or gender identity, amounted to a “philosophical belief” under the Equality Act 2010.
In other cases, Tribunals have decided that a fervent anti-fox hunting belief, a belief in Scottish independence, ethical veganism, and a belief that mankind is heading towards catastrophic climate change, all amounted to philosophical beliefs.
However, in the more recent case of McClung v Doosan Babcock Ltd and others, the Employment Tribunal concluded that supporting a football club did not amount to a protected philosophical belief.
So, when do an employee’s beliefs qualify for protection under the Equality Act 2010?
For a philosophical belief to be protected under the Equality Act 2010, it must meet all of the following five criteria:
• the belief must be genuinely held;
• it must be a belief and not simply an opinion or viewpoint based on the present state of information available;
• it must be a belief about a weighty and substantial aspect of human life and behaviour;
• the belief must attain a certain level of cogency, seriousness, cohesion, and importance; and
• 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.
McClung v Doosan Babcock Ltd and others
In the recent case of McClung v Doosan Babcock Ltd and others, the claimant had supported Glasgow Rangers FC for 42 years, was a member of the club and received yearly birthday cards from them. He never missed a match and spent much of his discretionary income on attendance at games, as well as watching them on television. He believed supporting Rangers was a way of life and that it was as important to him as attending church is for religious people.
The case did touch upon nationalist and political elements as the claimant described himself, and most Rangers’ fans, as caring passionately about the UK and having loyalty to Northern Ireland and the Queen.
However, when the Tribunal applied the five criteria set out above to the facts of the case, they found that the Claimant’s belief did not amount to a protected philosophical belief for the following reasons:
Was the belief genuinely held?
The Tribunal did not dispute that the claimant genuinely believed that supporting Rangers was a way of life which amounted to a philosophical belief.
Was it a belief and not an opinion or viewpoint based on the present state of information available?
While the Tribunal accepted that this was a belief, and the claimant’s support for Rangers was not merely a transitory opinion, the Tribunal concluded that his support for Rangers was more akin to support for a political party, which previous Tribunal decisions have found does not constitute a protected philosophical belief.
Was it a belief as to a weighty and substantial aspect of human life and behaviour?
The Tribunal decided that support for a football club is akin to a lifestyle choice and did not have a weighty or substantial impact on humanity. Rangers fans supported the team for various reasons and displayed their support in diverse ways.
Did the belief have a level of cogency, seriousness, cohesion, and importance?
The Tribunal found that there was nothing to suggest that Rangers fans had to behave, or did behave, in the same (cohesive) way. Support for the Union and loyalty to the Queen were not prerequisites of being a Rangers supporter. The judge found that the only common factor was that fans wanted their team to succeed.
Was it worthy of respect in a democratic society?
The Tribunal concluded that support for Rangers did not invoke the same respect in a democratic society as matters such as ethical veganism or the governance of a country, which, as set out above, have previously been found to amount to philosophical beliefs.
While the Tribunal decided in this case that the claimant’s support for Rangers did not amount to a protected philosophical belief, this does not rule out future claims of a similar nature. Tribunals review matters on a case-by-case basis and may reach different conclusions in relation to similar beliefs in different cases.
Employers should bear in mind that philosophical beliefs, as well as religions, are protected under the Equality Act 2010 and, as demonstrated in this article, it is not always clear which beliefs will be protected and which won’t. Employers should ensure that their policies, staff handbooks and guidance are kept up to date, diversity training is thorough and inclusive of all beliefs and be mindful that a serious and strongly-held belief could constitute a protected characteristic for discrimination purposes.
This bulletin is for general guidance purposes only and should not be used for any other purpose.
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