Last reviewed 23 June 2022
Philosophical belief is protected by the Equality Act 2010 (EqA). However, what constitutes such a belief is not clear cut. Following recent case law that identified factors that can limit a belief “qualifying” for this protection, we ask what can limit a belief from being one worthy of protection? And what if that belief includes an obligation to break the law?
In this article we examine philosophical belief as a protected characteristic and the limits established in case law.
What is a philosophical belief?
Section 10(2) of the EqA states “Belief means any religious or philosophical belief ….”.
As coherent and recognisable philosophical beliefs emerge from a collection of ideas and stances, such as for veganism, there is the question of whether they should be given the same level of protection as religious beliefs. This was put to rest by the Employment Appeal Tribunal (EAT) in General Municipal and Boilermakers Union v Henderson (2014) where it was held that:
“The Law does not accord special protection for one category of belief and less protection for another. All qualifying beliefs are equally protected. Philosophical beliefs may be just as fundamental or integral to a person’s individuality and daily life as are religious beliefs.”
So how can we recognise when a belief is protected? And how can employers use this information to manage employees claiming to hold a belief protected under the EqA?
The Equality Act 2010 Statutory Code of Practice outlines that a belief “must affect how a person lives their life and perceives the world”; essentially, they will need to base a significant aspect of the way they conduct their daily lives around it.
In the Employment Appeal Tribunal (EAT) case of Grainger plc v Nicholson (2009), specific guidance was provided on what could constitute a philosophical belief. In that case, an employee had a “strongly held philosophical belief about climate change and the environment”. The EAT upheld the original Employment Tribunal (ET) decision, which held that the employee’s views had gone beyond “mere opinion” as they affected the way in which he led his life.
The EAT also said that for a belief to be classed as a philosophical belief, it must:
be genuinely held and not just an opinion or point of view
be a belief about a weighty and substantial aspect of human life and behaviour
attain a certain level of logic, seriousness, structure and importance
be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.
The EAT went on to say that it need not be shared by others to be protected, nor does it have to allude to a fully-fledged system of thoughts.
Can opinions be a belief under the EqA?
According to the EAT in McClintock v Department of Constitutional Affairs (2008), the answer is no. In this case, the claimant objected to same-sex couples adopting babies, as he felt the evidence supporting such adoptions was unconvincing. The EAT found that there was no evidence of a particular viewpoint in which the claimant believed, but merely an opinion that had been formed through logic and information (real or perceived, true or false).
What about political beliefs?
Political beliefs are likely to become the subject of lunch-time debates over the coming weeks, as the biggest national strike action in 30 years takes place on the railways. Supporting (or not) strike action can be an important of some political positions, and it was stated in Grainger (albeit obiter) that whilst “support of a political party” in itself cannot amount to a philosophical belief, a belief in a political philosophy or doctrine, such as Socialism, Marxism or free-market Capitalism, could do, if it met the tests set out in that case.
Is this something therefore that employers should be approaching with caution?
The EqA’s explanatory notes do not address the question of political beliefs specifically. Based on the comments of a government spokesperson in 2010, on the draft Equality Bill, it was not the intention of the labour government for views and opinions based on political theories to be treated on the same level as religious or philosophical beliefs.
The Acas guide on religion or belief discrimination makes a distinction between supporting a political party and following a political philosophy in a way that affects how an individual lives their life. It also makes the point that employees are already protected under the Employment Rights Act 1996 from dismissal solely or mainly because of political opinion or affiliation, which suggests it was not the lawmaker’s intention to include support for political parties within s.10 of the EqA.
It would seem protection under the EqA will only apply when the support for a political party is because of a political belief, such as in Olivier v Department of Work and Pensions (2013), where a belief in “democratic socialism” led to support of the labour party, who held this as a core value, and allowed Olivier protection under the EqA.
What if a belief includes an obligation to break the law?
In the case of Free Miles v The Royal Veterinary College, published in June 2022, claims for indirect and direct philosophical belief discrimination were brought against an employer following the employee’s summary dismissal for her connection to an animal rights group that endorsed law breaking which she herself had participated in, including trespass and theft.
Like Casamitjana, she relied on her belief in ethical veganism. However, she took this a step further by saying this belief placed upon her an obligation to take action to reduce suffering by animals, even where fulfilment of that obligation meant trespass and removal of the animals from another’s property. This belief led her to enter private property and remove a sick turkey, which was found in her flat following a police raid and contributed to the decision to dismiss her.
In this case, the ET were clear that without this obligation for illegal actions, it would have found that this belief fell under s.10 of the EqA — even if it included the obligation to take lawful action, such as protesting. The law breaking, however, was too much for this belief to be protected and meant that this belief did not meet all the tests in Grainger — it was not worthy of respect in a democratic society, as it was not down to individuals to decide which laws they should and should not follow.
What does this mean for employers?
The limits on what would be considered a philosophical belief continue to be clarified by case law. This helps employers make informed decisions when managing their employees, including when conversations get heated around political opinions and comments are made that are critical of representatives of political parties and cross the line to misconduct.
It also means that should employees take illegal or unlawful action in pursuit of their beliefs, it seems highly unlikely that they will be protected under the EqA and employers will be able to act against employees breaking the law (where it impacts on their work). Whilst the case of Free Miles was only at ET level, so not binding, it does help give employers clarity on the position that action including dismissal following illegal or unlawful actions connected with a cogently held belief is unlikely to be discriminatory (although it will still be subject to unfair dismissal rules).