How does a tribunal decide whether a person’s view on something amounts to a ‘belief’ which is protected from discrimination?

Religion or belief is one of nine protected characteristics covered by the Equality Act 2010. This means that those who hold a protected religion or belief have a right not to be discriminated against, suffer harassment or be victimised on grounds of that religion or belief. ‘Religion’ means any religion, including a lack of religion. ‘Belief’ means any religious or philosophical belief (or lack of belief).  

There have been several recent cases which have looked closely at the idea of a ‘philosophical belief’ and what is needed for a belief to qualify as ‘philosophical’. In the case of Grainger plc v Nicholson five criteria were identified which must be satisfied for a belief to be protected. These five criteria are mirrored in the Equality and Human Rights Commission Code of Practice 2011. These are that: 

• The belief must be genuinely held.
• The belief must not simply be an opinion or viewpoint based on the present state of information available.
• The belief must concern a weighty and substantial aspect of human life and behaviour.
• The belief must attain a certain level of cogency, seriousness, cohesion and importance.
• The belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not be in conflict with the fundamental rights of others.

Applying this test, the following are examples of beliefs which have been held by to be philosophical beliefs:

• Climate change
• Anti Zionist views
• Gender critical views
• The higher purpose of public service broadcasting
• Anti Fox-hunting

The wide remit of ‘philosophical belief’ means that employers should take care when employees have strong views. They should treat them with respect unless, as the test states, they are not ‘worthy of respect in a democratic society’ or are ‘incompatible with human dignity and …. in conflict with the fundamental rights of others’. This is a narrow exception. 

In Forstater v CGD, the Employment Appeal Tribunal held that beliefs would only be unworthy of respect in a democratic society if they “would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms”. Beliefs which are offensive, shocking or even disturbing to others, including those the expression of which could amount to the less serious category of hate speech can still be protected.

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Jon is a Partner at Wollens and can advise you. Contact Jon via email jon.dunkley@wollens.co.uk or call 01271 341021.

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