The Equality Act 2010 (the Act) prohibits direct and indirect discrimination and harassment in the workplace on the grounds of religious or philosophical belief. Prior to the Act coming into force, the Government made it clear that the Act was not intended to cover political beliefs. However, a recent Employment Tribunal decision has cast doubt on this by providing protection to an employee’s belief in “democratic socialism”.

Belief in ‘democratic socialism’ protected

In the case of Olivier v Department of Work & Pensions [2013], Mr Olivier worked for the Department of Work & Pensions (DWP). The DWP had a set of Standards of Behaviour Procedures (SBP) which stated that employees who were in particular positions of responsibility, such as Mr Olivier, were prohibited from commenting on politically controversial topics and that they needed permission from their manager before taking part in any political activity.

Mr Olivier was elected as a Labour councillor during the course of his employment and he also wrote a letter in the local newspaper criticising the government’s benefits policies. He was dismissed for breach of the SBP procedures.

Mr Olivier brought a claim for unfair dismissal and a claim for discrimination on the grounds of a philosophical belief, namely his affiliation with the Labour party. Mr Olivier claimed that it was more than a political affiliation and that he lived his life according to the Labour Party’s core values of “democratic socialism”.

At a preliminary hearing, the Employment Tribunal decided that democratic socialism could amount to a ‘philosophical belief’ under the Act. It found that Mr Olivier had strong connections with the Labour party and its history and this was more than just a passing interest. Mr Olivier was therefore allowed to carry on with his claim to full hearing to determine whether he had been the subject of discrimination.

Philosophical or political belief?

In Olivier, the Tribunal applied the guidance given by the Employment Appeal Tribunal (EAT) in TW Nicholson v Grainger plc & Others [2010] on the definition of a philosophical belief.

To be protected, the belief must:

• be genuinely held;
• not merely an opinion or viewpoint;
• attain a certain level of cogency, seriousness, cohesion and importance (but need not allude to a fully fledged system of thought); and
• be worthy of respect in a democratic society and not incompatible with human dignity.

The EAT commented that while mere support of a political party would not qualify as a philosophical belief, a belief in a political philosophy or doctrine might qualify. This interpretation has allowed long term political affiliations (such as that held by Mr Olivier) to be considered as amounting to a ‘philosophical belief’.

The EAT’s comment in Nicholson was similar to guidance given in the Employment Statutory Code of Practice published by the Equality and Human Rights Commission. It should be noted however, that the Government did not agree with this approach and distanced itself from the Code of Practice. The spokesman for the Government Equalities Office at the time said that “the Government does not think that views or opinions based on scientific – or indeed on political – theories can be considered to be akin to religious beliefs or philosophical beliefs. Nor was it the intention in introducing the legislation that such beliefs should be covered".

Legal developments

Cases brought pre Nicholson took a much narrower interpretation of what could amount to a philosophical belief and analysed such beliefs in the context of religion. In Baggs v Fudge [2005] and Finnon v Asda Stores Ltd [2005] the Tribunals had to consider whether the support of the BNP could be a philosophical belief. The Tribunals concluded in both cases that it could not, as the BNP does not require its members to belong to a particular religion, or hold particular religious beliefs, and it has no proven links with religion or religious beliefs.

In Nicholson itself, the employment judge held that Mr Nicholson’s belief about climate change and the environment, which affected how he lived his life, was capable of being a protected belief. The fact that it affected Mr Nicholson’s life was the necessary distinction needed. The judge agreed with McClintock v Department of Constitutional Affairs [2007] which found that a mere opinion based on real or perceived logic is not enough.

In Hashman v Milton Park (Dorset) Ltd t/a Orchard Park [2011] the claimant’s belief in the sanctity of life and, in particular, his anti-fox hunting and anti-hare coursing stance, was found to be a protected belief. The Tribunal took into account how much impact it made on how the claimant lived his life but noted that it did not mean that everyone opposed to fox hunting would necessarily have a protected belief.

Finally, in Maistry v BBC [2011] the Tribunal decided that a belief in public service broadcasting having a higher purpose of promoting cultural interchanges and social cohesion qualified as a philosophical belief. The judge applied the test adopted in Nicholson in determining that the belief was protected.

Tips for employers

What is important for employers to note is that Olivier is a first instance Tribunal decision and therefore not binding. It will remain to be seen whether other Tribunals will follow the same logic.

In the meantime, employers need to be wary of taking steps where strongly held beliefs of employees are known which could be presented as the “reason” for any steps taken by employers, such as disciplinary action or dismissal. Employers should review their policies and ensure that their management training on these issues is up to date.

It is worth remembering that even if a belief is protected, the employee’s claim only succeeds if it can be shown that the employee was treated adversely because of his or her belief. Employers should therefore ensure that their reasons for any action taken are well documented with a paper trail of emails or other documents so that it is clear that even if an employee’s belief is protected, it is not the reason for the action taken.