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Case law: Employee with strong views on public sector spending may be protected by discrimination law

Employers who subject an employee to detriment for their strongly held views, for example, about the proper and efficient use of public money in the public sector, may be discriminating against them on grounds of 'philosophical belief', following a recent ruling.

Legal Alert

This update was published in Legal Alert - June 2016

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

Discrimination occurs if someone suffers a detriment at work because of their religious or philosophical beliefs. 'Belief' means any religious or philosophical belief (including a lack of belief). A previous legal ruling set a five-part test for deciding whether something is a belief for these purposes:

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

A police employee brought a discrimination claim, claiming he had suffered a detriment at work because he had expressed views about 'the proper and efficient use of public money in the public sector'. His basic concern was that public services were 'improperly wasteful of money'. He argued that this was a 'philosophical belief' under discrimination law, and he had therefore been discriminated against.

The Employment Tribunal (ET) applied the tests above and decided his views did not meet three out of the five criteria. While his belief was genuine and worthy of respect in a democratic society, the ET was not convinced that it was a belief (rather than being just an opinion), or that it dealt with a weighty and substantial aspect of human life and behaviour, or that it had the necessary level of cogency, cohesion and importance. It therefore ruled it was not a philosophical belief and the detriment did not amount to unlawful discrimination.

The Employment Appeal Tribunal (EAT) found that ET had not applied the third and fourth criteria properly. Specifically, it warned against 'setting the bar too high' when deciding whether a belief was philosophical. For example, it discussed the possibility that the word 'substantial' meant no more than 'that which is more than merely trivial'. Similarly, the word 'coherence' merely meant 'intelligible and capable of being understood' – nothing more. The EAT found that the employee's belief would clearly meet that test – and sent the case back to the ET for reconsideration.

However, the EAT did support the ET's view that a belief which only affected someone's conduct at work would be too narrow to qualify as a philosophical belief. Such a belief would be 'parochial' rather than 'fundamental' - and the law should not protect someone from detriment for holding such a belief.

This EAT ruling does not say that the employee's views were a 'belief' for discrimination purposes, but that the ET had not properly explained how it had come to its conclusion that they were not. It may be that when the ET reconsiders the case, it will come to the same conclusion as before (that there had been no discrimination), but explain its reasoning better. However, it highlights the care employers need to take when dealing with an employee with strong views on a particular topic, in case their views amount to a philosophical belief.

As well as the legal ruling setting the five tests, employers should also consider the statutory Code of Practice for the Equality Act when considering whether a belief qualifies for protection.

Operative date

  • Now

Recommendations

  • Employers should ensure they do not act to the detriment of a worker acting on the basis of strong views, without checking whether or not those views amount to 'philosophical beliefs', or they risk a potential discrimination claim.

ref: Harron v Dorset Police [2016] UKEAT 0234_15_1201

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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