‘English Nationalism’ – a limited protected right
Head of Employment Law, Kate Lea, explains...
As an employment lawyer I have watched with interest the laws that seek to promote equality and prohibit discrimination grow and evolve. I have found it interesting to see how courts have grappled with the legislation to determine claims in the face of competing rights where parties to a dispute claim that the enjoyment of an individual or groups human rights and freedoms interfere with another’s rights and freedoms.
Practitioners will have followed with interest the case of Ashers v Lee, referred to as ‘the ‘gay cake case’ which commenced in 2014 after a Christian run bakery refused to make a cake with the slogan “Support Gay Marriage,” which progressed all the way to the European Court of Human Rights.
More recently we have seen similar debate and analysis in the context of an employee holding ‘gender critical’ beliefs.
From an employment law perspective this is all very interesting stuff. However, for an employer trying to navigate such complexities it is far from easy. Making decisions which serve to restrict an employee’s rights in favour of another’s rights is fraught with risk and ripe pickings for lawyers.
Predicted as the new battle ground in discrimination law, I read with interest last week the case of Thomas v Surry and Borders Partnership NHS Foundation Trust [Ref: 2024 EAT 141]. In this case the Claimant’s assignment was terminated by the Trust because of his belief in ‘English Nationalism.’ Mr Thomas held a belief that there was no place in British society for Muslims or Islam and that Muslims should be forcibly deported from the UK.
The Employment Tribunal was asked to consider whether this belief was worthy of protection under the Equality Act 2010.
The Employment Tribunal, applying principles determined in the case of Grainger v Nicholson found that although many aspects of the Claimant’s belief were covered by the Equality Act the Claimant’s “hate speech” did not because it was not worthy of respect in a democratic society, was incompatible with human dignity and conflicted with the fundamental rights of others.
This decision was upheld by the Employment Appeal Tribunal which confirmed that UK law had to be interpreted in accordance with the European Convention of Human Rights.
Whilst this decision did not prevent the Claimant holding his views, he was outside of the right to complain that he had been discriminated against in relation to those beliefs in the circumstances.
Employers are advised to review their equal opportunities policies and to give careful thought and take advice before taking action which might interfere with an individual’s rights in what remains a complex and potentially controversial area of employment law.
If you are seeking Employment Law advice please contact us on telephone 0116 212 1000 or 01858 445 480, alternatively fill in the free Contact Us form and we will get in touch as soon as possible.
View all
