Protected Characteristics: What is a ‘Philosophical Belief’?
Employment law - protected characteristics
In UK employment law, employees have certain personal characteristics protected from, say, discriminatory behaviour.
These characteristics are listed within the Equality Act 2010, under a chapter entitled ‘Protected Characteristics’. Some, such as age, are easy to identify and define. However, other ‘characteristics’ require deep analysis to understand what may or may not fall into the category.
What is meant by religion or belief?
One such area is ‘Religion or Belief’.
Whilst ‘religion’ may be a little easier to scope, ‘belief’ has a wide definition, which has caused continuous issues for the Tribunals.
Read through these definitions to see what you think.
Firstly, s10 (2) of the Act states that ‘belief’ means ‘any religious or philosophical belief’.
But what exactly is a ‘philosophical belief’, you might reasonably ask. Well, the legislation attempts to clarify:
‘… it must be genuinely held; be a belief and not an opinion or viewpoint based on the present state of information available; be a belief as to a weighty and substantial aspect of human life and behaviour; attain a certain level of cogency, seriousness, cohesion and importance; and be worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others.’
Even for someone with years of legal training behind them, this is a wordy definition.
Ok, so how have the tribunals dealt with this?
Case examples - philosophical belief in practice
Let’s look at a few case examples.
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In Mr A Cave v The Open University, it was considered whether English Nationalism fell within the Equality Act’s definition of philosophical belief.
Mr Cave had strong beliefs which he described as ‘right wing’, ‘anti-egalitarian’, ‘liberal’ on some things, but generally take the ‘traditionalist’ stance on most issues…’ He described himself as a ‘English Nationalist’.
What led to Mr Cave’s departure was how he expressed these views on his YouTube channel and on other online platforms. In one instance, in response to an individual posting proudly of their African heritage on Africa Day, “*expletive* off and go home!”.
In considering whether such a stance could qualify as a philosophical belief under the Equality Act, the Tribunal quickly moved to criticise Mr Cave’s language, going to the extent of describing the belief as ‘in at least some respects, … akin to Nazism’.
In summary, the Tribunal found the Claimant’s alleged belief to be ‘not worthy of respect in a democratic society. It is incompatible with human dignity and in conflict with the fundamental rights of others’.
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Contrast Mr Cave’s outcome with:
Maya Forstater v CGD Europe
In this case, Ms Forstater held certain ‘gender critical beliefs’, as it was put in the Tribunal report. Ms Forstater believed that gender is immutable. She engaged in debates on social media and made comments which some colleagues found offensive and ‘transphobic’.
A section of colleagues complained, and Ms Forstater eventually found that her engagement with the Respondent was not renewed.
The Tribunal initially found that Ms Forstater’s contention did not amount to a belief. The Tribunal made reference to violation of dignity as well as creating an ‘intimidating, hostile, degrading or offensive environment’.
However, this decision was overturned. The EAT, re-assessing the criteria in the key test set out in Grainger, focused on whether the contention was ‘akin to Nazism or totalitarianism’, a phrase which you will be familiar with following Mr Cave’s judgment.
The EAT held that Ms Forstater’s belief was not ‘akin to Nazism’, and that, although having the potential to offend, did fall within the definition of belief under the Equality Act.
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Protected Characteristics are not easy
Identifying a person's religion is generally straightforward, but a personal belief is much harder to determine under the law.
So where do we stand?
As can be seen, deciding what is a characteristic protected under the Equality Act 2010 can be troublesome. Whether you’re an employee enduring discrimination; or an employer who is concerned about a new dispute in the office, or ET1 which landed at your door, we are here to help.
Lawson West has vast experience in discrimination litigation, and we’d be happy to talk through any concerns you may have.
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