The recent Employment Appeal Tribunal (EAT) decision in Henderson (‘H’) v GMB provides further guidance regarding discrimination or harassment on the basis of a ‘philosophical belief’, and makes clear that philosophical beliefs are subject to the same protection from discrimination and harassment as religious beliefs.

One of the protected characteristics under the Equality Act (‘EqA’) 2010 is ‘religion or belief’ – which can be broken down into religion, religious belief and philosophical belief. It is therefore possible for a claimant to bring a claim in an Employment Tribunal where they have been discriminated against or harassed for holding a ‘philosophical’ belief, even if that belief is not a religious one.

The EAT decision in Grainger plc and others v Nicholson [2009] provided detailed guidance on the definition of ‘philosophical belief’ which, although decided before the EqA, is still relevant. In particular, the belief must be genuinely held, must have a similar status or cogency to a religious belief and must be more than just an opinion or viewpoint. While supporting a political party does not amount to a philosophical belief on its own, a belief in a political philosophy such as socialism, Marxism or free-market capitalism might qualify. In Grainger itself, the EAT held a belief in man-made climate change could be a philosophical belief.

In this case, H was employed as a regional organiser for GMB, a trade union. He was dismissed for gross misconduct in December 2012 and brought claims to an Employment Tribunal for unfair dismissal, direct discrimination and harassment. The Tribunal found that H was fairly dismissed for gross misconduct, but that he had suffered direct discrimination and harassment on the basis of his “left-wing democratic socialist beliefs”, which amounted to a philosophical belief under the EqA. H was awarded compensation for injury to feelings.

Perhaps the most notable event which the Tribunal found amounted to harassment was one which followed H organising a picket line at the House of Commons that tried to prevent Labour MPs crossing. H also wrote a “day of action” letter and publicised the picket line in the media. After complaints from the office of Labour Party leader Ed Miliband, H was called by the General Secretary of the GMB, Paul Kenny, who was found by the Tribunal to have shouted at H over the phone, saying his letter was “over the top” and “too left wing”. H had argued before the Tribunal that after this incident there was a campaign to undermine and ultimately dismiss him because of his beliefs.

Both parties appealed to the EAT. The EAT dismissed H’s appeals and upheld GMB’s appeal. The EAT expressly rejected any suggestion that philosophical beliefs should be given less protection than religious beliefs, and emphasised that there was no challenge on appeal to the Tribunal’s finding that left-wing democratic socialism is a philosophical belief for the purposes of the EqA. However, its rejection of the Tribunal’s findings of direct discrimination and harassment was on the basis that these were not supported by the findings of fact or by the evidence. The phone call, for example, was an isolated incident and was not serious enough to create an ‘intimidating, hostile, degrading, humiliating or offensive environment’ for the purposes of establishing harassment.

Although the EAT allowed GMB’s appeal in this case, the decision does emphasise that employers should take great care as to how they treat employees with strongly held beliefs, including political beliefs. Employers should also take note of the EAT’s clear statement that philosophical beliefs and religious beliefs are equally protected by the EqA.