The Regulations prevent discrimination, victimisation or harassment on the grounds of religion or belief. When the Regulations came into force in December 2003, Reg 2(1) prohibited discriminatory treatment in the workplace on the grounds of ‘any religion, religious belief, or similar philosophical belief'. The word ‘similar' only protected beliefs that could be equated with adherence to a religious creed.
In April 2007, after pressure from secular groups, the word ‘similar' was omitted from the Regulations so as to cover any philosophical belief. The significance of this change is demonstrated in the climate change case (Grainger and others vs Nicholson) and the spiritualist case (Greater Manchester Police vs Power) in which the Employment Appeal Tribunal (EAT) decided that a claimant's beliefs in climate change and spiritualism fell within the definition of ‘philosophical belief' and was capable of protection against discrimination. The EAT in the Grainger case also defined the limits of what may constitute a philosophical.
Nicholson was made redundant from his post as head of sustainability at Grainger and asserted that he had actually been dismissed because of his belief in climate change and protected disclosures that he had made.
Nicholson said he had tried to develop a carbon management strategy but Grainger refused to provide him with the necessary information to do so. The crux of Nicholson's argument was that climate change beliefs are a philosophical belief and relied on the fact that they affected how he lives, how he travels, what he buys and what he eats. The EAT held that his belief gave rise to a ‘moral order' similar to most religions and was a ‘philosophical belief'.
The EAT found that Nicholson's climate change belief did amount to a philosophical belief and set out the guidelines below. The belief must be:
- genuinely held
- a belief and not an opinion or viewpoint based on the information currently available
- a belief as to a weighty and substantial aspect of human life and behaviour
- able to attain a certain level of cogency, seriousness, cohesion and importance
- worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others
Although the word ‘similar' had been removed from the Regulations, the EAT held that it remains necessary for the belief to have a similar status or cogency to a religious belief.
The EAT held that, while to establish a religious belief a claimant need only show that they adhere to a particular religion, for a philosophical belief a claimant may need to show proof of the sincerity of the belief.
The concern for many employers will be that it opens the floodgates for a whole range of employee viewpoints perhaps to be caught. Examples might include veganism, BNP membership or animal protection rights. However, the implication of the Nicholson decision is that just a strong opinion would be unlikely to be protected by the Regulations.
Practically, employers will now have to weigh individual viewpoints against popular thinking to determine whether they can be defined as ‘beliefs' for the purposes of the Regulations. This will be an especially difficult task for employers who may need to examine this before they take action against an employee, otherwise they could risk leaving themselves exposed to claims under the Regulations, with potentially unlimited damages.
Similarly, employers will have to deal with competing and contrary beliefs in society. They will have the difficult task of considering and reconciling conflicting beliefs in a multicultural society, such as gay rights and Christianity. It is difficult to avoid the conclusion that employers may unwittingly be influenced by their own socio-cultural perceptions in deciding whether a belief merits the label of popular thinking.
Of course, if the proposed action is actually not being considered on the basis of the employee's particular viewpoint, no liability should arise.
In the 2001 census spiritualism was the eighth largest religion with 32,404 people claiming allegiance. Jedi Knights was fourth, with 390,000. Are those adherents now worthy of protection?
Brian Palmer is a partner at Fladgate
