The Employment Tribunal has further considered the parameters of what constitutes protected philosophical beliefs under the Equality Act 2010 (the “Act”) as it aims to protect those who may be discriminated against as a result of their protected characteristics.
The case of McClung v Doosan Babcock Ltd and others brought into consideration the extent to which supporting a football club could amount to a philosophical belief under the Act.
Background
The claimant (“M”) had been a fan of Glasgow Rangers Football Club (“Rangers”) for 42 years and considered it a key part of his life. The club was as important to him as attending church is for religious people, in motivating him to be the best he could in accordance with the club’s values. Further, he believed that supporting the club inspired fans to respect others and contribute to society in a like manner to other protected religious groups under the Act, such as supporting the club’s charitable foundation.
Decision
The judge had to consider the issue of whether M’s support of Rangers amounted to a “philosophical or religious belief” under section 10 of the Act. He ruled that M held a belief as far as being an active supporter of the club.
The legal test for what amounts to a philosophical belief is set out in the case of Grainger plc and others v Nicholson. The judge used this test to determine if M’s support of the club constituted a philosophical belief.
The Grainger test requires that any such belief 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, not incompatible with human dignity and not conflict with the fundamental rights of others.
Whilst it was not disputed that M’s belief in supporting Rangers was genuinely held, his claim did not succeed at fulfilling the other four criteria required for a philosophical belief.
- Was it a belief and not an opinion or viewpoint based on the present state of information available? It was accepted that the law had moved on since 2010 when the Act came into force. However, the Explanatory Notes to the Act should still be considered useful in interpreting the legislation. The Explanatory Notes stated that, humanism and atheism would be acceptable beliefs, but supporting a particular football team or political party would not suffice. In addition, the judge had regard to earlier cases where support or active membership of a political party was not considered to be a philosophical belief for the purposes of claiming discrimination and another case where there needed to be a religious or philosophical viewpoint underpinning the support. As a result, the judge decided that M’s belief did not fulfil this criterion.
- Did the belief relate to a weighty and substantial aspect of human life and behaviour? Support for a football club was deemed similar to a lifestyle choice. It did not hold much importance or consequence to society when compared with weightier issues such as ethical veganism or gender critical beliefs (which had been found to amount philosophical beliefs in the Casamitjana and Forstater cases respectively). The judge drew parallels to the case of Conisbee v Crossley Farms Ltd in which the claimant in that case unsuccessfully argued that his vegetarianism was a protected philosophical belief. In that case the Tribunal decided that there were many different reasons behind vegetarianism but there was not a single cohesive basis or belief. In M’s case, the fact that there was a wide array of Rangers' fans with varying reasons behind their support and with their support being shown in different ways meant that M’s belief did not relate to a weighty and substantial aspect of human life and behaviour.
- Was there a level of cogency, seriousness, cohesion and importance? M argued that the vast majority of Rangers fans shared strong, genuine beliefs regarding spending their discretionary income supporting the team, having loyalty to the Queen, and holding strong Unionist views. The judge, however, found that there was nothing amongst fans to suggest that common beliefs were held across the club. It was insufficient that only some fans would share similar views as the only common factor was that fans wanted their team to succeed. M’s belief did not, therefore, have the required level of cogency, seriousness, cohesion and importance.
- Was it worthy of respect in a democratic society not incompatible with human dignity and not conflict with the fundamental rights of others? Whilst the judge found that support for a particular football club was worthy of a degree of respect in democratic society, it did not invoke the same level of respect compared to matters such as ethical veganism, the importance of which had been the subject of academic research and commentary. As a result, M’s support for Rangers did not fulfil this fifth criteria in the Grainger test for what amounts to a protected philosophical belief.
Comment
In this case, the Tribunal decided that the claimant’s support for Rangers was not a protected philosophical belief. This meant that he could not rely upon his belief as a protected characteristic in order to bring a discrimination claim under the Act.
The Employment Tribunal will need to continue weighing and testing the limits of the Grainger criteria on a case-by-case basis as claimants bring cases relating to assert. The extent of wider factors that will influence the further case law remains to be seen though it is clear that the impact of beliefs in the workplace and society are points for consideration.
It could help employers to be mindful of certain implications when managing employees with different beliefs and characteristics.
- Employers should try to maintain a respectful culture which encompasses a range of beliefs held by all employees. Due care must be taken not to only “police” and sanction beliefs that differ or deviate from the known protected under the Act and case law, such as strong vegan beliefs.
- Workplace policies and handbooks should be accessible and updated when necessary to accommodate the varying beliefs held by employees.
- Diversity training should be considered to encourage inclusive, cohesive attitudes in the workplace which embrace a wide range of beliefs.
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This article contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.
