Stronachs Logo

The Equality Act 2010 prohibits discrimination and harassment on the grounds of nine “protected characteristics”, one of which is religion or belief. While it is relatively straightforward to identify religions and religious beliefs that are granted protection under the act, courts have grappled in recent years with what types of philosophical beliefs should be protected.

Through case law, the courts have developed some guidance on what criteria a philosophical belief must satisfy to be considered protected under the Equality Act. These include:

 

• whether the belief is genuinely held;
• whether it is truly a belief (rather than merely an opinion or viewpoint based on the present information available);
• whether the belief has attained a certain level of cogency, seriousness or importance;
• whether it is a belief as to a substantial and weighty aspect of human life and behaviours;
• whether it has similar status or cogency to a religious belief (although a full-fledged system of thought is not required); and
• whether it is worthy of protection in a democratic society.

Courts and tribunals have addressed a number of different beliefs over the years. By way of example, beliefs that have been deemed to meet the requirements above include belief in climate change, belief in the sanctity of life, and an anti-fox hunting belief. In contrast, membership of the BNP, and belief that same-sex couples should not adopt children, were not protected.

The challenges Tribunals face when making these assessments were highlighted by two recent cases in which the judges reached different opinions on whether a particular philosophical belief was protected by the Equality Act.

In the first case, McEleny v Ministry of Defence, which was widely reported in the press, the Employment Tribunal had to determine as a preliminary issue whether a belief in Scottish independence and membership of the SNP were protected beliefs under the Equality Act 2010. Mr McEleny claimed that he had been subjected to direct discrimination by the Ministry of Defence on the grounds of his philosophical beliefs. He had been an electrician for the Ministry of Defence munitions plant in Beith when he stood for election as Deputy Leader for the SNP. Following the announcement of his candidacy, National Security Vetting suspended his security clearance and questioned him, allegedly regarding his opinions on independency, Trident, and a speech he had given at an SNP conference in 2012.

Before being able to pursue his discrimination claim, it was necessary to determine whether his beliefs were capable of amounting to philosophical beliefs protected under the Equality Act. The MoD claimed they were not. It argued that Mr McEleny’s views were political opinions or affiliations rather than philosophical beliefs. They also argued that his views did not concern issues which were far-reaching enough to warrant protection as philosophical beliefs, arguing that Scottish independence and the actions of the SNP would have no impact on lives of people in Tanzania, Peru or India.

Mr McEleny argued that his views were genuinely held and were serious, cohesive and important, and therefore worthy of protection.

In terms of membership of the SNP and a belief in its “social democratic values”, Employment Judge Eccles agreed that this was not a philosophical belief and was simply a political opinion. However, she did note that Mr McEleny’s membership of the SNP was a manifestation of his belief in Scottish independence, which she considered was a sufficiently cogent and important view to be a philosophical belief. She took into account that Mr McEleny’s views on independence went beyond a political view and were not based simply on evidence, or even a belief, that Scotland would be better off economically and socially if it was independent, but rather was founded upon the fundamental belief that Scotland had a right to self-governance. She rejected the argument that the belief was not far-reaching enough because it would not be of importance to anyone beyond the UK, and noted that issues of sovereignty and independence from Britain had been of importance in, for example, Tanzania, in the course of the last century. The direct discrimination case has therefore been permitted to proceed to a full hearing.

In contrast, in Gray v Mulberry Company (Design) Ltd, the Employment Appeal Tribunal (EAT) was required to determine whether the Employment Tribunal had correctly decided that Ms Gray’s belief in “the statutory human or moral right to own the copyright and moral rights of her own creative works and output” were not protected philosophical beliefs. Ms Gray had worked for handbag designers Mulberrry, and in the course of her role had access to designs in the development stages. Mulberry asked her to sign a copyright agreement to protect its intellectual property. Ms Gray refused on the grounds that she was concerned that this would interfere with the writing and film making that she undertook outwith her employment. Although Mulberry agreed to amend the agreement to make clear that only intellectual property created in the course of Ms Gray’s employment would be covered, Ms Gray continued to refuse to sign the copyright agreement and her employment was ultimately terminated as a consequence.

Ms Gray lodged proceedings for unfair dismissal and claimed that she had been discriminated against, both directly and indirectly, on the grounds of belief in the statutory human or moral right to own the copyright and moral rights of her own creative works and output. Ms Gray had not raised this belief with Mulberry at any time during her employment.

The Tribunal at first instance held that Ms Gray genuinely held the belief, that the belief was a belief rather than a mere viewpoint, and concerned a weighty and substantial aspect of human life, but found that it was not a sufficiently “cohesive belief pattern” to qualify as a philosophical belief under the Equality Act 2010. It was not “any sort of philosophical touchstone to her life”.

On appeal, the EAT agreed. It decided that the Tribunal had not confused the issue of cogency with the importance of the belief. Furthermore, the criteria identified in previous case law must be applied to the manifestation of the belief. Ms Gray had not made her belief known to Mulberry at any point, and when she explained her refusal to sign the agreement to her employer, she merely referred to her concerns regarding “copyright theft” rather than any philosophical belief in ownership of intellectual property. Her arguments to Mulberry “could be described as purely commercial and designed to protect her private interests”. Therefore, Ms Gray’s views on copyright were not considered a philosophical belief.

Conclusions

It is clear from these debates that it might be difficult for an employer to determine whether a particular point of view may come under the philosophical belief protection of the Equality Act. It is especially problematic where an employee has not previously mentioned holding such a belief, and while this is not necessarily a prerequisite for success, it may create difficulties for claimants in showing that the belief is genuinely held.

Another difficulty is separating political points of view, and support for particular political parties, from more fundamental philosophical beliefs. A useful consideration is whether the support for a particular party can be said to be a manifestation of a more fundamental belief. However, it is perhaps difficult for anyone’s subjective assessment of the merits of a particular political party, whether that might be the SNP, the Greens or even UKIP, not to impact their judgement as to whether “something more fundamental” is at stake. It is reported that Mr McEleny case was supported by written submission provided by no less a figure than the former First Minister, Alex Salmond but the content or assessment of those submissions and whether they assisted the Tribunal has not been disclosed.

For many Scots there are perhaps few more emotive issues than the merits of independence, which is why the Employment Judge in McEleny v Ministry of Defence, had such a difficult and unenviable task.

If you have any queries regarding any of the issues discussed above please contact a member of the Stronachs Employment Team.

Annika Neukirch, Solicitor

 

Chambers Leading Firm 2019

Contact Info

ABERDEEN OFFICE
28 Albyn Place, Aberdeen AB10 1YL
Tel: +44 1224 845845

 

INVERNESS OFFICE
Camas House, Fairways Business Park,
Inverness IV2 6AA
Tel: + 44 1463 713225