Eco case raises philosophical questions
ALL those people who designated their religion as “Jedi Knight” in the last census may have delighted at the case of the so-called “eco-employee” last week. The employee in question is Tim Nicholson, who formerly worked for residential landlord Grainger. Nicholson claims that he was made redundant because of his environmental beliefs, and has been given the green light to take his employer to court. This is the first time that an employee has successfully argued that he was discriminated against because of his philosophical beliefs, something which was outlawed in the Employment Equality (Religion and Belief) Regulations of 2003.
Although the Grainger case is unlikely to open the floodgates for claims for protection from discrimination, there will no doubt be some interesting attempts. Whether a belief is a philosophical one nevertheless remains a grey area and is open to rigorous challenge. The decision will not automatically green light protection from discrimination for a whole range of beliefs.
So what counts as a “philosophical belief”? The Employment Appeal Tribunal (EAT) avoided that debate in its ruling. Instead, it looked to existing Human Rights legislation for assistance. 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, the law says.
A claimant will be interrogated as to whether his philosophical belief is “genuine, weighty and substantial”, according to last week’s judgement guidance, and a fleeting interest or a standpoint based on current trends will not suffice. A philosophical belief need not end in an “ism”, can be based in science (eg Darwinism). Creationism (which I think would be considered a faith) would also be protected.
Membership of a political party is unlikely to be sufficient, although a deep-rooted belief in a political doctrine (eg socialism) might be. A claim that membership of the BNP amounts to a philosophical belief has previously been rejected by an Employment Tribunal. The EAT guidance 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”. On these grounds, even Darwinism could be open to challenge as it might be said to offend certain religious groups within society, thereby conflicting with their fundamental rights.
SURPRISING DECISIONS
What is surprising about the Grainger decision is that it suggests that philosophical and religious beliefs should be treated differently. According to the court’s ruling, philosophical doctrines are open to assessment of whether they might offend society, while religious beliefs are not. So, for example, somebody who believed in the subjugation of women as part of their religion would be given more protection than somebody who held those beliefs on philosophical grounds.
Another claim by a group of teachers and parents of certain religious schools that corporal punishment was a part of their religion – they claimed that it was sanctioned in scripture – was previously rejected by an employment tribunal, who said that this was not sufficient to count as a religious or philosophical belief.
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 (eg cancer, epilepsy etc) has, although it will take much longer.
To succeed in his case, Nicholson would need to demonstrate that he held the relevant philosophical belief, and that it was the primary or underlying reason for his dismissal. Whether Nicholson can establish that he holds this philosophical belief will be closely watched.
A barrister would surely question somebody’s philosophical beliefs very closely. For example, it is easy to imagine that pictures of an atheist attending a religious service in church might damage his argument that his beliefs were deeply held.
If Nicholson can prove his case, compensation is technically unlimited. In practice, it will be subject to whether he has got another job or has made reasonable attempts to, and only a low to mid range award for injury to feelings (unless he was so offended by the discrimination he had a physical or mental reaction to it) of no more than £15,000 would be likely.
Although Grainger is known as the “UK’s largest listed residential landlord”, it will unfortunately now also be associated with anti environmentalism, win or lose. As a public company with corporate responsibilities, Grainger’s PR machine will need to be highly polished to avoid further reputational damage.
Emma Bartlett is a partner at Speechly Bircham LLP