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Employment tribunal ruling could change grounds for religious discrimination

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An employment tribunal has ruled that a former executive of a leading property company can claim he was sacked because of his 'philosophical belief in climate change'.

Under human rights and anti-discrimination legislation, employees, former employees and applicants have the right to hold their own religious beliefs or other philosophical beliefs similar to a religion, and are protected against discrimination on these grounds. They also have the right to have no religion or belief.  In an ongoing case - Nicholson vs Grainger plc - the employment tribunal had to grapple with determining the parameters of this right and, in particular, what constitutes a ‘belief' for the purposes of the legislation.
The Employment Equality (Religion or Belief) Regulations 2003 implements the elements of the European Council's framework directive for equal treatment in employment and occupation. It says it is unlawful for someone to discriminate against anyone in the workplace because of their religion or belief (or because they have no religion or belief).
For the purposes of the regulations, ‘religion or belief' means any religion or religious or philosophical belief.  Until 30 April 2007, for a belief to be a ‘philosophical belief', it needed to be ‘similar' to a religious belief, but this requirement has now been removed.  Therefore, this broadens the types of belief that are protected by the law.

Acas issued guidance (before the amendment) on putting the regulations into practice.  In it,  Acas recognises tribunals may consider a number of factors when deciding what is a religion or belief: for example,  collective worship, whether there is a clear belief system, or a profound belief affecting the way of life or view of the world.  It also noted employers should be aware the regulations extend beyond the more well-known religions and faiths, to include beliefs such as Paganism and Humanism.

Last week, at a pre-hearing review (PHR) held at a London employment tribunal in the Nicholson v Grainger plc case, the tribunal had to give its view on whether an employee's strongly held views on climate change could amount to a protected ‘belief'. Nicholson brought a claim of unfair dismissal against his ex-employer on the basis he was made redundant because of his views on climate change.

Although Grainger argued Nicholson's views were based on fact and science and not on philosophical beliefs, the employment judge accepted that Nicholson's views about the environment could constitute a ‘belief' under the regulations and therefore allowed the case to proceed to a full trial on this basis.  

This could potentially broaden the scope of potential claims under this legislation. Until now, cases have tended to take a narrow interpretation of what could amount to a belief - for example, in separate cases they have ruled that patriotism and loyalty to a flag, or support for the British National Party could not be properly described as a belief for the purposes of UK legislation.

But the Nicholson v Grainger plc case has only just concluded the PHR stage.  PHRs are intended to assess some preliminary legal issue, in advance of a full employment tribunal hearing, and their decisions can be appealed against, which may yet happen. And there is no guarantee the claimant will go on to win his case, although practitioners will have noted with interest the judge's PHR ruling on this particular issue. While this does not create a precedent that will bind future tribunals, HR practitioners will at least be able to point to judicial precedent and reasoning to strengthen their argument. Tribunals may look to try to distinguish future cases on the facts of this case.

For now, though, it is an interesting development and possible expansion on what were previously held to be ‘beliefs'.  If the claimant is successful at the employment tribunal hearing, this case could potentially significantly impact employers whose green credentials have already been called into question by campaigners - those in the aviation and manufacturing sectors.

We wait to see whether Grainger appeals and the final judgment with interest.

Christopher Hitchins is a partner in the labour and employment team at the London office of international law firm, Morgan Lewis