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From Howes Percival

In the 2011 census only 59.3% of the population of England and Wales described themselves as Christians and 25% stated that they had no religion.  The rest of the population claimed to follow a wide variety of "beliefs" such as "Heavy Metal" (6,242) "Jedi Knight" (176,632), "Humanism" (15,067) and "Paganism" (56,620). This is important for employers because "philosophical beliefs" are protected in employment law in the same way as religious beliefs. However looking at the above examples it is not always clear which ones would be a philosophical belief. In this edition of The Works we look at what types of beliefs are capable of being a philosophical belief, the hurdles employees must overcome to establish they have a philosophical belief and what employers can do to prevent potential claims.
What is a philosophical belief?
When the Religion or Belief Regulations came into force in 2003, belief was defined as "any religious belief or similar philosophical belief".   However in 2007 the reference to "similar" was dropped and this has widened the scope of what can constitute a philosophical belief. 
The Employment Appeal Tribunal (EAT) in Grainger plc v Nicholson (2010) gave guidance that in order to be protected as a philosophical belief under the Equality Act, a belief:
  • Must be genuinely held;
  • Must not simply be an opinion based on information currently available;
  • Must be on a weighty and substantial aspect of human life and behaviour;
  • Must be able to attain a certain level of cogency, seriousness, cohesion and importance; and
  • Must be worthy of respect in a democratic society, not being incompatible with human dignity and not conflict with the fundamental rights of others.
Therefore in contrast to discrimination based on a religious belief – where the employee only has to show they believe in a particular religion – to establish a philosophical belief the employee can be cross-examined about the genuineness and the nature of their belief and whether or not they will be protected depends on whether their belief passes the tests laid down in Nicholson.
Case examples of philosophical belief
The best way to understand what types of philosophical belief are and are not capable of being a philosophical belief is to look at some case examples. 
As well as setting down guidance for establishing a philosophical belief, the EAT in Nicholson also held that Mr Nicholson"s belief in climate change was capable of being a philosophical belief.  This was because Mr Nicholson"s belief affected how he lived his life, for example he would not travel by plane, composted his food waste and bought local produce.  The Equality and Human Rights Commission Code of Practice states that "A belief need not include faith or worship of a god…but must affect how a person lives their life or perceives the world" (paragraph 2.58).
Subsequent Employment Tribunal decisions demonstrate how the Nicholson criteria has been applied.  In Hashman v Milton Park (Dorset) Limited t/a Orchard Park (2011), the Employment Tribunal held that a belief in the "sanctity of life" which extended to a fervent belief in anti-fox hunting constituted a philosophical belief.  As in the Nicholson case, Mr Hashman"s belief went beyond opinion because it affected every aspect of his life on a daily basis - he was a vegan, he did not consume or wear products directly sourced from animals and worked as a consultant on hunting issues for the International Fund for Animal Welfare.
In Maistry v BBC (2011) an Employment Tribunal held that a belief in public service broadcasting is a philosophical belief.  A surprising decision to many, the Tribunal had nevertheless applied the tests in Nicholson and found that Mr Maistry"s belief was not merely opinion because the importance of public service broadcasting had attracted commentary by philosophers and academics.  The Tribunal also held that a belief in "the importance of providing a non-commercial, non-governmental, independent public space in which cultural, social and political tensions can be debated...clearly relates to weighty and substantial aspects of human life and behaviour". 
In Greater Manchester Police Authority v Power (2010), the EAT upheld an Employment Tribunal"s decision that a belief in spiritualism and that mediums can contact the dead is a philosophical belief.  Unusually the Tribunal held that Mr Power"s beliefs were capable of being both a religious and philosophical belief.  The spiritualist church was established in 1853 and has ordained ministers.  Furthermore Mr Power"s belief in life after death and that the dead can be contacted through mediums are "worthy of respect in a democratic society and have sufficient cogency, seriousness, cohesion and importance" to constitute a philosophical belief.
Case examples of what is not a philosophical belief
However not every stated belief will qualify as a philosophical belief as the following cases demonstrate.
In Farrell v South Yorkshire Police Authority (2011) the Employment Tribunal held that a belief that the 9/11 and 7/7 attacks were part of a global conspiracy was not a philosophical belief.  Although the beliefs satisfied some of the tests in Nicholson in that they were genuinely held and were on a weighty and substantial aspect of human life, the Tribunal found that Mr Farrell"s beliefs "completely failed to meet even a bare minimum standard of coherence and cohesion" and were "absurd".
In Lisk v Shield Guardian & Co Limited and others (2011), an Employment Tribunal held that a belief that people should wear a poppy from 2 November (All Saints Day) to Remembrance Sunday is not a philosophical belief. Although Mr Lisk"s belief was "admirable", it lacked cogency, cohesion and importance and was too narrow to be a philosophical belief. 
In Kelly and others v UNISON (2010), an Employment Tribunal found that Marxist/Trotskyite beliefs were not a philosophical belief.  The views were genuinely held, were beliefs rather than opinion, related to weighty and substantial aspects of human life and behaviour and had attained a level of cogency, seriousness, cohesion and importance.  However the Employment Tribunal found that a belief in overthrowing the current system of government by revolution and the state depriving individuals of their homes and property was not worthy of respect in a democratic society and conflicted with the fundamental rights of others. However the Kelly decision has been appealed and at the time of writing we are awaiting the EAT"s decision.
The Nicholson test of "human dignity, the rights of others and worthy of respect in a democratic society" was seen by some at the time as a way of ensuring that members of the BNP or other fascist organisations could not claim protection in law for their "philosophical beliefs".  When the Employment Tribunal in Baggs v Fudge (2005) decided that membership of the BNP was not a philosophical belief, philosophical beliefs had to be "similar" to religious beliefs.  When this requirement was removed in 2007 the position became less clear and hence the test in Nicholson.  However the European Court of Human Rights (ECHR) has now undermined this part of the Nicholson test by their recent decision in Redfearn v UK (2012).  Mr Redfearn, a BNP councillor was dismissed from his job as a bus driver when elected and could not bring an unfair dismissal claim as he had been employed for less than 1 year, (the qualifying period at the time). Mr Redfearn did bring a race discrimination claim (on the basis membership of the BNP was restricted to white people) but was unsuccessful. He did not bring a claim based on "philosophical belief" because the Religion and Belief Regulations were not in force at the time of his dismissal.   Mr Redfearn claimed that his inability to challenge his dismissal meant UK employment law breached his Article 11 Right to Freedom of Association.  The ECHR upheld his claim and the UK must either amend unfair dismissal law to create an exception to the qualifying period for unfair dismissal for claims relating to political opinion or affiliation or create a free-standing claim for discrimination on the grounds of political opinion or affiliation.  In the ECHR"s opinion Article 11 applies to all organisations even those which hold offensive, shocking or disturbing views. 
While the UK government considers its response, employees who are members of the BNP or other extremist organisations could use the Redfearn decision to claim that their extreme views are a philosophical belief and accordingly they are protected under the law.
It is also worth remembering that even if an employee establishes that their belief is a philosophical belief, they still have to establish that is the reason for their treatment.  In the case of Power (see above), the Tribunal held that the reason for Mr Power"s dismissal was not his philosophical belief, but because he had distributed posters and CD"s around the police station about his spiritualist beliefs and accordingly dismissed his claim.  In the case of Harris v NKL Automotive Limited, an Employment Tribunal found that being a Rastafarian is a philosophical belief however the EAT held that the employer"s requirement to have tidy hair was not indirectly discriminatory against Rastafarians because dreadlocks can be kept in a tidy manner. In Kelly (see above), the Employment Tribunal held that if they were wrong and Marxist/Trotskyite beliefs are a philosophical belief, the claimants in any event had not been discriminated against on the basis of that alleged philosophical belief.
What should employers do?
The problem with philosophical belief is that it is potentially very wide.  Identifying potential discrimination is much easier in a sex or race claim where it is straightforward to identify a person"s race or gender and make employees aware that discrimination on that basis will not be tolerated.  But how can an employer protect their employees from discrimination on grounds of an unidentified belief which may or may not qualify as a philosophical belief?
Although there is no list of beliefs which will definitely be a philosophical belief, employers should still add the term "philosophical belief" to their anti-discrimination, anti-harassment and equal opportunities policies. The topic of what potentially is a philosophical belief should also be included in any equal opportunities training for staff.
Employers should ensure their line managers can identify any issues or complaints by employees which potentially could relate to a philosophical belief.  In the same way as sickness absence can alert an employer to a potential disability issue, certain activities should alert employers to a potential philosophical belief claim.  Likely issues include any concerns about the handling or storage of food or alcohol at work or the refusal to carry out certain duties.  Employers should also seek legal advice before disciplining or dismissing an employee for their "political" activities either inside or outside the workplace such as selling certain publications and putting up posters or membership of extremist organisations.  Although disciplining an employee for inappropriate manifestation of their philosophical belief, especially in certain roles, is unlikely to be found discriminatory, legal advice should still be sought on this issue due to its sensitive nature and recent legal developments.
As the cases in this article illustrate employers do need to be aware of what beliefs are potentially protected as a philosophical belief in order to avoid being stung by a costly and complex discrimination claim


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