Religion or belief discrimination: key case law

Religious rights iStock 000010158473XSmall 146x209What amounts to a protected “philosophical belief” under the Equality Act 2010? Graham Richardson assesses a recent Employment Tribunal decision and analyses the case law.

An Employment Tribunal in the case of Olivier v Department of Work and Pensions has recently considered whether an employee’s belief in “democratic socialism” could amount to a ‘philosophical belief’ for the purposes of a religion or belief discrimination claim.

Legal background

The Equality Act 2010, prohibits discriminating against a person because of religious or philosophical belief. This raises the thorny question: how do you determine whether a particular belief qualifies as a “philosophical belief” and therefore has the benefit of protection under the Act?

The main source of guidance can be found in the case of Grainger v Nicholson, where an Employment Appeal Tribunal found that a belief in catastrophic climate change could be categorised as a ‘philosophical belief’ for discrimination purposes. That case specifically looked at the definition of a ‘philosophical belief’ and many Tribunals have since referred to this case when deciding whether an employee has protection. The Nicholson test is as follows:

  • The belief must be genuinely held.
  • It must be a belief, not an opinion or viewpoint based on the present state of information available.
  • It must be a belief as to a weighty and substantial aspect of human life and behaviour.
  • It must attain a certain level of cogency, seriousness, cohesion and importance.
  • It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

The Employment Appeal Tribunal also stated that, while “support of a political party” does not itself amount to a ‘philosophical belief’, a belief in a political philosophy or doctrine such as socialism, Marxism or free-market capitalism might qualify. The recent decision in Olivier v Department of Work and Pensions revisited this issue.

Facts

Mr Olivier worked for the Department of Work and Pensions (“DWP”) as a benefits adviser at the Penzance Jobcentre. In 2013, he was elected as a Labour councillor and had a letter published in a local newspaper, expressing his personal opinion which criticised the Government's benefits policy. Mr Olivier had been an active member of the Labour Party for over 30 years and had stood as a Labour candidate in other council elections. Mr Olivier believed that the Labour Party was not simply an organisation, but that it enshrines a set of core beliefs, displayed on its membership card, that are recognised by the general public. He described his beliefs as being in essence “democratic socialism” and asserted that his strong beliefs in these values influenced how he conducted his everyday life.

The DWP have Standards of Behaviour Procedures (SBP), which restrict and manage when and how its civil service employees can engage in political activity. Mr Olivier was classified as being in a sensitive post because he had regular contact with the public as a benefits advisor. He was, therefore, required to apply in writing to his manager before taking up any political activity.

The DWP dismissed Mr Olivier on grounds of gross misconduct for not seeking management permission before his most recent standing as councillor (in breach of the SBP) and for writing the letter to his local newspaper. Mr Olivier brought an unfair dismissal and a direct discrimination claim, alleging that he was dismissed because of his “democratic socialist” views as a longstanding Labour party activist.

The Employment Tribunal decision

The Employment Tribunal found Mr Olivier’s belief in "democratic socialism" qualified as a ‘philosophical belief’ which meant he could bring a claim for direct discrimination under the Equality Act. The Tribunal, in making its decision, sought to apply the Employment Appeal Tribunal’s guidance in Nicholson and found that Mr Olivier genuinely held his belief, the belief was worthy of respect in a democratic society and was not incompatible with human dignity. The Tribunal also found that Mr Olivier’s belief was a belief as to a weighty and substantial aspect of human life and behaviour and the belief attained a certain level of cogency, seriousness, cohesion and importance.

The Tribunal held that Mr Olivier had a strong support for, interest in and connection with the history and moral tenets of the Socialist Labour Party, rather than simply supporting them. It accepted that Mr Olivier lived for the Labour Party, and supported its aims and beliefs to the extent that it affected how he conducted his life. The Tribunal found that he was not simply a “political animal” who chose to support a political party.

Notwithstanding its findings that Mr Olivier’s beliefs were protected “philosophical beliefs”, the Tribunal was not persuaded that his dismissal was because of his beliefs, but considered it was because of his failure to comply with the DWP’s Standards of Behaviour Procedures. As such, the Tribunal found that overall his claims had little prospect of success and made a deposit order. However, the significance of this case lies in the Tribunal’s findings as to what constitutes a “philosophical belief”.

What can amount to a ‘philosophical belief’?

The Olivier case is one of a string of cases which has come before the Tribunals around whether different beliefs amount to a protected ‘philosophical belief’ under the Equality Act, affording employees protection from discrimination in certain circumstances.

Other examples of cases where a belief has been found to qualify as a protected philosophical or religious belief are as follows:

  • a belief in the sanctity of life extending to a fervent anti-fox hunting and hare-coursing belief (Hashman v Milton Park (Dorset) Ltd t/a Orchard Park);
  • a belief that public service broadcasting has the “higher purpose of promoting cultural interchange and social cohesion” (Maistry v BBC);
  • a belief in spiritualism, life after death and the ability of mediums to contact the dead (Greater Manchester Police Authority v Power); and
  • a belief that “it is wrong to lie under any circumstances” (Hawkins v Universal Utilities Ltd t/a Unicom).

However, not every belief has been found by the Tribunals to be a protected philosophical or religious belief. Beliefs that have been found not to be protected under equality legislation (at least in the individual circumstances of the cases in question) include the following:

  • a belief that people should pay their respects by wearing a poppy from 2 November to Remembrance Day (Lisk v Shield Guardian Co Ltd and others). The belief was found to lack the characteristics of cogency, cohesion and importance and could not fairly be described as relating to a weighty and substantial aspect of human life and behaviour;
  • a belief that the 9/11 and 7/7 attacks were “false flag” operations perpetrated by the US and UK governments, and that the media is controlled by a global elite seeking to further a “new world order” (Farrell v South Yorkshire Police Authority). The Tribunal found that the beliefs “completely failed to meet even a bare minimum standard of coherence and cohesion”; and
  • “extreme” Marxist/Trotsyist beliefs (Kelly and others v Unison). The views were found by the Tribunal not to be “worthy of respect in a democratic society”, partly because they would involve unlawful industrial action and seeking undemocratic revolution.

Comment

The recent decision in Olivier is noteworthy as it sheds new light on how a belief, which is based on strong political views, can potentially amount to a ‘philosophical belief’.  Even though this is a first instance decision, which means it is not binding on other Tribunals, the decision may be referred to in other cases for guidance. For now, if employers have employees with strong political views, who meet the Nicholson test, then they should tread carefully as the employee could be protected under the Equality Act in relation to those beliefs.

Olivier and the other cases referred to above demonstrate that the protection afforded by the Equality Act to “philosophical beliefs” is drawn widely – perhaps more widely than many employers would expect. There are limits to which beliefs the protections cover, although exactly where the boundaries lie is not always clear. However, it is important to note that for an employee bringing a discrimination claim to establish that their belief is a “philosophical belief” capable of protection under the Equality Act is only the first step in establishing their employer’s liability. It will also be necessary for the employee to establish that their less favourable treatment by their employer was on grounds of that philosophical belief. As Olivier shows, this will not always be easy.

Graham Richardson is a Director at Bond Dickinson LLP. He can be contacted on 0844 984 1500 or This email address is being protected from spambots. You need JavaScript enabled to view it..