Philosophical beliefs are changing rapidly, and employers need to have the right policies in place to be able to adapt to ongoing developments. We look at some examples of recent cases to illustrate what employers need to consider.
What the law says
Philosophical beliefs are a protected characteristic under the Equality Act 2010. The test to establish a philosophical belief stems from the case of Grainger Plc v Nicholson, which concluded that the belief must be:
- genuinely held
- not a mere opinion or viewpoint based on the present state of information available
- a substantial aspect of human life and behaviour
- serious, cohesive and with a similar status to a religious belief;
- worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others
Interestingly, the case of MBA v Mayor and Burgess of the London Borough concluded that to bring an indirect discrimination claim based on a philosophical or religious belief, a provision or practice need only disadvantage the individual claimant, rather than a wider group of fellow believers as well. This makes it easier to establish a claim for indirect discrimination on the grounds of religion or belief than with other protected characteristics.
Identifying philosophical beliefs
Since the introduction of the Equality Act, there have been several cases that have challenged the view that the top world religions are the only beliefs worthy of protection under the Equality Act. These cases have appeared to lower the bar of what constitutes a philosophical belief to cover a broader spectrum of modern trends and popular movements.
One example of this is the recent trend of millennials turning to veganism as a means of animal protection. The Tribunal has responded by declaring ethical veganism a philosophical belief worthy of protection under the Equality Act. It is important, however, to acknowledge the difference between veganism and ethical veganism as demonstrated in the case of Casamitjana Costa v The League Against Cruel Sports (LACS). In this case the claimant abstained from consuming animal produce but also changed his lifestyle choices as an extension of his reasoning in not consuming animal produce.
The claimant would not use cash as the plastic contains traces of animal fat, he walks rather than taking the bus and avoids crushing insects in his travels and he would not date or live with someone that was not vegan. As such, his lifestyle had adapted to his belief and was incorporated into his daily activities, allowing the Tribunal to conclude that his belief was a philosophical belief. It will be interesting to see whether there is now a rise of claims where discrimination is alleged on the grounds of being an ethical veganism as more people make that lifestyle change.
Over the past couple of decades, Scientologists have, so far unsuccessfully, attempted to have their belief of Scientology defined under the category of religion. The case of R v Registrar General ex p Segerdal, held that Scientology did not fulfil the requirements of a religion and lacked actual religious worship.
However, in recent times the Church of Scientology has been able to have their Churches classified as a place of worship and are able to conduct marriage ceremonies. In the direction they are headed, there would be no surprises if they are successful in concluding that Scientology is at least a philosophical belief to be protected under the Equality Act.
However, not all beliefs will benefit from protection under the Equality Act as the case of Forstater v CGD Europe shows. This case concluded that the belief that a person’s sex at birth is inalterable was not a philosophical belief and therefore not protected by the Equality Act. This is a positive judgment as it shows there are clear limits as to how far the tribunals will go to protect and find something to be a philosophical belief and that they are not willing to allow people to abuse the criteria on philosophical belief.
In addition, even if a claimant can establish a philosophical belief, to bring a successful discrimination claim they still have to demonstrate a link between the unlawful act complained about and their belief. This was shown in the case of Greater Manchester Police Authority v Power, where a dismissal was found to be fair as the decision was based on the employees conduct surrounding his belief rather than the belief itself.
By way of background the claimant alleged he was discriminated against by being dismissed because he believed in a psychic and paranormal existence and he was a committed spiritualist. However, the Tribunal found that his belief was not in question but the fact of how he expressed that belief in his employment, in particular the fact he was distributing CDs and posters which were deemed unacceptable in the course of his employment and he had a disruptive attitude during role plays. This case validates the position that the tribunals will look at the facts of the case in detail and will distinguish between discrimination against belief and situations where the claimant has simply been disciplined for crossing boundaries in respect of their employment.
Overall, employers should be comforted that the floodgates are not about to open with many weird and wonderful beliefs being deemed protected, as the tribunals have shown that they are strict in their application of the criteria for what will constitute a philosophical belief. However, these cases do demonstrate the importance of the need for employers to implement strong equal opportunity and diversity policies that give them the flexibility to adapt to changes in culture and practices amongst their workforce, without the fear of some form of discrimination occurring.