Richard White discusses a recent case in which the employment tribunal held that an employee’s belief in climate change could be considered a religious belief, rather than an opinion.
In the recent case of Nicholson v Grainger PLC and others, the employment tribunal held that Mr Nicholson’s belief in climate change could amount to a philosophical belief within the meaning of the Employment Equality (Religion or Belief) Regulations 2003 (‘the regulations’).
Facts
Mr Nicholson was dismissed as head of sustainability by Grainger PLC, purportedly by reason of redundancy. Mr Nicholson believed that the real reason for the dismissal was his beliefs in regards to climate change and a number of protected disclosures he had made in this respect. He brought a number of claims, including unfair dismissal and discrimination on the grounds of religion or belief.
In 2007 the regulations were amended to the effect that ‘belief’ is now defined as ‘any religious or philosophical belief’. Mr Nicholson argued that his belief in climate change and the need to cut carbon emissions was a "strongly held philosophical belief about climate change and the environment" and "not merely an opinion but a philosophical belief which affects how I live my life including my choice of home, how I travel, what I buy, what I eat and drink, what I do with my waste and my hopes and fears". A pre-hearing review was held to determine whether his beliefs were protected under the regulations.
Decision
The tribunal decided that it was not their job to examine Mr Nicholson’s beliefs but to analyse those beliefs and decide whether they fell within the definition of ‘philosophical beliefs’ within the regulations.
The tribunal referred to the Employment Appeal Tribunal’s decision in McClintock v Department of Constitutional Affairs which approved the test for determining if beliefs fell within that definition. The test is whether the beliefs have ‘sufficient cogency, seriousness, cohesion and importance and are worthy of respect in a democratic society’.
The tribunal held Mr Nicholson’s beliefs give rise to a moral order similar to most religions and that it is difficult to argue that beliefs about the impact of climate change do not fall within this definition. The tribunal distinguished this case from McClintock where the EAT held that a belief required more than ‘an opinion based on some real or perceived logic or based on information or lack of information available’. In this case, Mr Nicholson’s views went beyond ‘mere opinion’ as they affected the way he lead his life.
The tribunal did, however, note that Mr Nicholson had to show that he had suffered discrimination on the basis of his beliefs. In other words, the fact that Mr Nicholson succeeded in showing that his beliefs were protected under the regulations does not mean he will automatically win his claim. He still has to go on to prove that the treatment he received from Grainger Plc, including his dismissal, was on the grounds of his philosophical beliefs.
Comment
This appears to be the first reported case of a person successfully arguing that a belief that is not similar to a religious belief may be protected under the regulations. Prior to this case, tribunals have tended to take a narrower approach to the interpretation of what can amount to a belief. For example, in the past the tribunal has decided that patriotism does not fall within the scope of the definition, although this was before the regulations were amended. It is important to note that this is a tribunal decision and therefore not binding. The decision does, however, suggest that the regulations could be applied more broadly in future.
The tribunal emphasised that this decision should not be seen as opening the floodgates for other similar claims. Employers should, however, err on the side of caution when dealing with employees’ beliefs that extend beyond religion. The regulations make it unlawful to treat another person less favourably or harass or victimise that person on the grounds of their religion or philosophical beliefs. For this reason and in light of the above case, employers should consider the following practical steps:
- Review and update equal opportunity and harassment policies. For example, policies should make it clear that less favourable treatment, harassment or victimisation of another employee in connection with their beliefs (whether religious, philosophical or otherwise) is unacceptable.
- Ensure that equal opportunities training covers issues such as religious and philosophical beliefs and why it is unacceptable for an employee to be subjected to less favourable treatment or harassment or victimisation, on the grounds of those beliefs. The training should ensure that staff are fully aware that it is not just religious beliefs which are protected under the regulations, but other strongly held views as well. What one person regards as friendly banter about someone else’s views, may be regarded by that other person as harassment on the grounds of their philosophical beliefs.
For further advice, please contact Richard White, specialist employment solicitor at Withy King, on 01865 268636 or email richard.white@withyking.co.uk
