Nicholson's settlement is substantial, notwithstanding that it is a fraction of his self- predicted losses. Discrimination claims have always been capable of achieving six (and in some cases seven) figure sums because compensation is uncapped and some employees will undoubtedly be spurred on by this. In reality, though, awards are calculated on established tribunal guidelines and this settlement will not act as a benchmark in future cases for tribunals or parties negotiating settlements. Nicholson had calculated his future loss of earnings following his dismissal for his green beliefs as just over three-quarters of a million pounds, based primarily on loss of future earnings and accrued pension benefit. Depending on the type of pension scheme a dismissed employee has, the loss of these rights can be huge, particularly if it's a final-salary scheme.
A ‘philosophical belief' remains a largely nebulous concept. The guidelines set out in this case require subjective analysis. The case outlined that the belief must be genuinely held, must be a belief and not an opinion or viewpoint, must be weighty and substantial, and must have a certain level of cogency, seriousness, cohesion and importance. The belief does not need to be shared by others, but must have similar cogency to a religious belief.
The Regulations were amended in April 2007 to specifically include a lack of religion or belief in the interpretation of ‘religion or belief'. Non-believers therefore have the same rights as believers; atheism and agnosticism may qualify for protection.
The threshold for determining a philosophical belief is far higher than deciding whether someone has a religious belief. Protection on grounds of religious belief only requires evidence of affiliation to the religion. A claimant with a philosophical belief will be interrogated as to whether his belief is ‘genuine, weighty and substantial': a fleeting interest or a standpoint based on current trends will not suffice.
A philosophical belief need not end in an ‘ism', but it helps. It can be based in science (for example, Darwinism) and can have political references. For example, Creationism (which is also a faith) would be protected.
Support for a political party does not in itself constitute a philosophical belief, but political doctrines or philosophies such as Marxism or Capitalism may qualify. The guidance in Grainger states that the belief must be ‘worthy of respect in a democratic society, must not be incompatible with human dignity, and must not conflict with the fundamental rights of others'. A claim that membership of the BNP amounts to a philosophical belief has previously been rejected by an employment tribunal. Therefore, belief in the BNP political ideologies could equally be open to challenge.
What is surprising about the Grainger decision is the new and different approach to determining a philosophical belief and a religious belief. Philosophical doctrines are open to subjective assessment of whether they might offend society. For example, one that includes subjugation of women will not pass the mustard of a philosophical belief, but there will be no such review of the tenets of a religious belief before offering protection from discrimination on those grounds. A claim by a group of teachers and parents of certain religious schools that corporal punishment was a belief under the Regulations was previously rejected by an employment tribunal because it was not sufficiently clear to count toward religious and philosophical convictions. Environmentalism is a sufficiently neutral principle to amount to a philosophical belief, if genuinely held, and one could anticipate that vegetarianism, veganism, and atheism might also succeed. A list of acceptable beliefs will no doubt grow over time, in the same way a list of acknowledged disabilities under the Disability Discrimination Act 1995 (for example, cancer, epilepsy, etc) has, although it will take much longer.
Whether a belief is a ‘philosophical' one nevertheless remains a grey area and is open to rigorous challenge. The Grainger decision has set a high bar for future claimants of philosophical beliefs, although no doubt many will be encouraged by the level of the openly reported terms of settlement.
Emma Bartlett is a partner in the employment team at Speechly Bircham LLP specialising in diversity
