A recent Employment Appeal Tribunal (EAT) case, GMB v Henderson, has confirmed that the Equality Act 2010 (EqA) affords protection from discrimination relating to philosophical/political beliefs.
What is the Equality Act 2010?
The Equality Act prohibits discrimination in relation to specific “protected characteristics” including age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief (which includes philosophical belief), sex and sexual orientation.
Existing case law on religion or belief
The EAT decision in Grainger plc and others v Nicholson [2009] was decided before the EqA came into force but remains good law. It gave guidance on what amounts to a philosophical belief for the purposes of the EqA. The belief must be genuinely held, must have a similar status or cogency to a religious belief and must be more than an opinion or viewpoint. Support of a political party cannot, itself, amount to a philosophical belief but belief in a political philosophy might qualify.
The Background
Mr Henderson was an advocate of left-wing democratic socialism. He worked as a Regional Organising Officer for the GMB and he was dismissed for gross misconduct for challenging the authority of his line management and making serious allegations regarding collusion between the GMB and the Labour Party. Mr Henderson brought claims in the Employment Tribunal for unfair dismissal, direct discrimination and harassment. The Tribunal found that he had been fairly dismissed for misconduct but that his dismissal had also been partly based on his political beliefs. Accordingly, whilst his unfair dismissal claim failed, the Tribunal did find that Mr Henderson had suffered direct discrimination and harassment and it awarded him compensation for injury to feelings.
Both parties appealed against to the EAT. Mr Henderson appealed against the finding that his dismissal had been fair and the GMB appealed against the finding of direct discrimination and harassment in relation to Mr Henderson’s political beliefs.
The EAT decision
The EAT agreed that Mr Henderson had been fairly dismissed by the GMB for misconduct. It did not agree however that Mr Henderson’s political beliefs had been at the forefront of the minds of those who decided to dismiss him. The EAT found that whilst those who decided to dismiss Mr Henderson may not have been overly supportive of his political beliefs, their decision was based on his conduct as opposed to those actual beliefs. The Tribunal’s decision on direct discrimination and harassment was rejected by the EAT on the grounds that it was not supported by the findings of fact or the evidence available.
The EAT also expressly confirmed that the EqA does not give special protection to one category of belief and less protection for another. It also emphasised that there had been no appeal on the Tribunal’s finding that Mr Henderson’s beliefs did amount to philosophical beliefs for the purposes of the EqA. The EAT confirmed that all qualifying philosophical and religious beliefs are afforded equal protection by the EqA.
Comment
What will constitute a genuine and qualifying belief in relation to religious and philosophical beliefs will continue to be determined by the courts and will depend on the circumstances of each case. Case law will continue to clarify this area of law but in the meantime the EAT has confirmed that philosophical beliefs (such as left-wing democratic socialism) can attract the same level of protection as religious beliefs. Employers should therefore take care as to how they treat employees with strongly held beliefs, including political beliefs.
Jeremy Crook is a solicitor in the dispute resolution team. The Stephens Scown employment team works in partnership with organisations to improve their HR practices and advise on employment issues. To discuss this or any other HR issue call 01726 74433 or e-mail employment@stephens-scown.co.uk