The so called culture wars have given rise to a number of Employment Tribunal cases in respect of treatment based upon belief, the most notable and contentious of late being that gender critical views do amount to a protected belief under the Equality Act 2010.
Another recent judgement at a preliminary hearing found that holding a view that opposes critical race theory can also be considered a philosophical belief under the Equality Act.
In August 2021, Sean Corby, a senior mediator for ACAS, posted on Yammer, a private workplace communications platform, that critical race theory is divisive because it portrays white people as racist.
Corby argued that a better approach to addressing racism was to follow the ideas of Martin Luther King, who said that people should be judged by the content of their character rather than the colour of their skin.
Some of Corby’s colleagues complained to managers that his comments demonstrated “a deep-rooted hatred towards black and minority ethnic people who challenge racism, organise in black structures and safe spaces and mobilise against racism” and were “promoting racist ideas”.
They added that they would not feel “safe to be in contact with him in person” and questioned his right to be employed by ACAS, who facilitate mediation before claims can be made to the Employment Tribunal.
ACAS instructed Corby to remove the posts criticising the Black Lives Matter movement, as some employees had found them offensive.
Corby, felt his employer was acting “like East Germany” and took ACAS to the Employment Tribunal, claiming unlawful discrimination on the grounds that his views were protected under the Equality Act 2010.
At a preliminary hearing last month, the employment judge agreed with Corby’s on the basis that he had given his beliefs “careful consideration and much thought”, stating in the judgement that;
“The claimant’s beliefs relate, in essence, to the best way of eliminating racism in society, and are clearly worthy of respect. They cannot be described as incompatible with human dignity or conflicting with the fundamental rights of others, even if they are not universally shared and were objected to by some of the claimant’s colleagues”
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As such, his belief in opposing critical race theory amounts to a protected characteristic that can be afforded protection by Section 10 of the Equality Act.
The criteria for whether a philosophical belief is likely to have protection arises from the case of Grainger plc and they are 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 relate 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 democratic society and not incompatible with human dignity or the fundamental rights of others
- It must have a similar status or cogency to a religious belief
- It need not be shared by others
- It may be a political philosophy or doctrine
- It may be based on science
Below are some examples of philosophical beliefs employment tribunals have upheld as being worthy of protection in recent years, followed by a list of those that have not.
- Environmentalism and belief in climate change
- Anti fox hunting belief
- A belief in the “higher purpose” of public service broadcasting
- A belief in Scottish Independence
- A belief in public service for the common good
- A belief that lying is always wrong
- Democratic socialist beliefs
- A belief in a participatory democracy
- A belief mediums can communicate with the dead
- Ethical veganism
Those beliefs found not to be worthy of protection include:
- Belief that 9/11 and 7/7 were “false flag” operations
- Belief that poppies should be worn in early November
- Membership of the BNP
- Marxist/Trotskyist beliefs
- Belief that Jews are God’s chosen people
- Belief that homosexuality is contrary to God’s law
- Vegetarianism
- Belief that the holocaust did not happen
The advice to employers is to proceed with caution if an employee cites a philosophical belief as a reason for doing something and to give the situation some serious thought and seek advice if you need to.
