Protecting ‘philosophical beliefs’ – have we gone too far?

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Overview

There have been some eye-catching reports recently of cases in the area of defining what amounts to a ‘philosophical belief’. The reason that this is of interest is due to the fact that under current law, now contained in the Equality Act 2010, people have protection against suffering from discrimination on the grounds of their ‘philosophical belief’.

Historically the law in this area has offered protection to people of a particular race, and those holding religious beliefs had to tie in their religion to the rather narrow definition of ‘race’ to seek protection. In 2003 the law was extended to cover discrimination on the grounds of ‘any religion, religious belief or similar philosophical belief’. This limited the kinds of opinions which could be protected as the word ‘similar’ meant that such beliefs had to be akin to a religious belief or creed to gain protection. The EU directive on which UK law is based does not contain such a qualification (referring only to religion or belief) and so, in 2007, the word ‘similar’ was dropped which effectively widened the scope of the law to cover any philosophical belief. There has been a sequence of test cases brought recently to determine just who and what is covered by the definition of ‘philosophical belief’.

The criteria needed to establish a ‘philosophical belief’ are that it is genuinely held; concerns a weighty and substantial aspect of human life and behaviour; attains a certain level of cogency, seriousness, cohesion and importance; and is worthy of respect in a democratic society and not incompatible with human dignity. These ‘guidelines’ were set out in Grainger v Nicholson where Mr Grainger persuaded the EAT that his belief in climate change could qualify as a ‘philosophical belief’.  He successfully argued that his views were ‘not merely an opinion but a philosophical belief’ affecting how he lived, including his choice of home, travel, purchases, food and drink, disposal of waste and his aspirations.

Following Mr Grainger’s case, a Mr Power who worked as a police trainer (and who was sacked after only 3 weeks in the job) successfully persuaded a tribunal and the EAT that his belief in spiritualism, life after death, and that the dead can be contacted through mediums and psychics qualified as ‘philosophical belief’ capable of legal protection.

This has become a topical issue again over recent months as further headline-making decisions have extended the scope of beliefs falling within the definition afforded legal protection. A former BBC employee persuaded a tribunal that his belief in the ‘higher purpose of public service broadcasting’ qualified as a philosophical belief. And, garnering more tabloid headlines, a tribunal held that an employee's passionate and long-standing opposition to blood sports was protected as a philosophical belief.

All these cases are fact sensitive, and in each situation the tribunal properly challenged the veracity and conviction of each claimant before accepting that they really did hold the beliefs they were relying on; they were very much put to test on this point. What’s more, establishing that a belief is capable of legal protection is only the first step. Once an employee has got past first base, he or she then has to go on to prove that his or her discriminatory treatment was because they held such a belief. And this generally has proved difficult to do, in no small part because there is rarely evidence of an overt discriminatory act. Mr Power took his substantive case (whether his belief was the cause of his sacking) all the way to the Court of Appeal - he lost.

So, while there is inevitable uncertainty for employers as to what beliefs may qualify for protection, it doesn’t appear that the floodgates have been opened so as to allow people protection for raising spurious beliefs on a whim. The trend of these cases does however suggest that employers need to consider, possibly more carefully than before, whether an employee may have additional protections under the Equality Act 2010 that previously thought.