Whether to permit employees to wear a red poppy in the workplace as a symbol of remembrance is not without controversy. Some employers seek to ban the wearing of the poppy on grounds of health and safety (for example in food preparation areas). For others the poppy is seen as a political symbol that may cause offence to others.
Are employers entitled to ban the wearing of the poppy, or will that possibly amount to discrimination on grounds of religion or belief?
The question of whether the wearing of the poppy could amount to a ‘belief’ under the Equality Act was considered by an Employment Tribunal in the case of Lisk v Shield Guardian Co Ltd. In this case Mr Lisk was an ex-serviceman who alleged that his employer refused to allow him to wear a poppy at work. He brought a discrimination claim against his employer. Mr Lisk’s argument was that: -
- He regarded the period from 2 November to 11 November as a period of mourning, and he equated it to the seriousness with which he, a Christian, observed Lent;
- As an ex-serviceman, he considered it an obligation to show respect for the sacrifice of others; and
- In his opinion the wearing of the poppy was widespread in this country and abroad, and did not conflict with anybody else's rights.
At a preliminary hearing, the employment judge considered whether his purported belief that "we should pay our respects to those who have given their lives for us by wearing a poppy from All Souls' Day on 2 November to Remembrance Day" amounted to a philosophical belief protected by the Equality Act 2010.
The test applied by the Judge was that set out in a previous case, Grainger plc and others v Nicholson  IRLR 4. In that case the EAT gave guidance as to what amounts to a philosophical belief for the purposes of the discrimination legislation. It stated that the belief must:
- Be genuinely held.
- Be a belief, 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.
- Be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
Applying the guidance set out in Grainger the Employment Judge rejected Mr Lisk’s claim, finding that: -
- It is not simply a question of whether somebody's choice to wear a poppy is serious and should be respected, but of whether there is a philosophical belief underpinning that choice.
- However admirable, the belief that one should wear a poppy to show respect seems to lack the characteristics of cogency, cohesion and importance required by the Nicholson case.
- The belief that we should express support for the sacrifice of others cannot fairly be described as being a belief as to a weighty and substantial aspect of human life and behaviour. It is too narrow to be characterised as a philosophical belief.
Mr Lisk’s claim failed and was not appealed. It is a decision of the Employment Tribunal, so not binding on other Employment Tribunals. A differently argued case may therefore still succeed.
The scope of what amounts to a Philosophical Belief has been widely interpreted. Decisions in Tribunal cases such as Hashman v Milton Park (Dorset) Ltd (t/a Orchard Park) ET/3105555/09 (Anti Fox Hunting belief)) and Maistry v BBC (Belief in the Higher purpose of public service broadcasting) demonstrate that. While in Mr Lisk’s case his ‘belief’ fell on the wrong side of the legal test, in another case it may succeed and it will then fall to the employer to demonstrate whether its policy was capable of being objectively justified.