We have previously blogged on the thorny (or perhaps thistly?) issue of whether a belief in Scottish Independence could be considered a philosophical belief benefitting from protection under the Equality Act 2010. In a headline grabbing preliminary finding the Glasgow Employment Tribunal has now confirmed that it can be.

What does the law say?

Under the Equality Act 2010 it is unlawful to discriminate in the workplace because of religion, religious belief, philosophical belief or lack of religion or belief. The Employment Appeal Tribunal has previously given guidance on the criteria for a belief to be protected:

  • The belief must be genuinely held. Evidence that the belief is held may be required.
  • It must be a belief, not an opinion or viewpoint based on the present state of information available. It may however be based on science e.g. Darwinism.
  • 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, not be incompatible with human dignity and not conflict with the fundamental rights of others.
  • It must “have a similar status or cogency to a religious belief”. However, it need not “allude to a fully-fledged system of thought”.
  • It does not necessarily need to be shared by others.
  • While “support of a political party” does not of itself amount to a philosophical belief, belief in a political philosophy or doctrine, such as Marxism or free-market Capitalism, might qualify.

Where a philosophical belief is protected under the Equality Act 2010 this means that any detriment suffered by an employee as a result could amount to unlawful discrimination

The facts

The case was brought against the Ministry of Defence (MoD) by current leader of the SNP group opposition on Inverclyde Council, Christopher McEleny. Mr McEleny claims constructive dismissal from his job as an electrician at the MoD munitions site in Beith, Ayrshire, as well as discrimination in relation to his belief in Scottish Independence.

Mr McEleny announced his candidacy in 2016 for the SNP deputy leadership election. Around the time of leadership hustings Mr McEleny alleges that the MoD revoked his site security clearance and suspended him from duties.

It was further alleged that security officials questioned Mr McEleny at his home regarding his mental health and his stance on Trident, Irish politics and Rangers FC. Mr McEleny was later reinstated but chose to resign claiming that he had been unfairly singled out

The arguments

As a preliminary issue the tribunal had to consider whether belief in Scottish Independence could qualify as a philosophical belief under the Equality Act 2010.

According to media coverage, Mr McEleny sought to rely on the earlier case of Grainger plc v Nicholson where an employee had successfully argued his belief in climate change should be protected under the Act. It was argued that his belief in Scottish Independence was not based on a belief that it would improve the social and economic circumstances of the Scottish people but rather on a fundamental belief that Scotland has a right to self-govern. His views influenced his ‘choices, actions and decisions’.

While the MoD noted that Mr McEleny’s belief was worthy of respect in a democratic society, they argued it did not have a similar status or cogency to a religious belief and was more akin to a political opinion. They further argued that a belief in independence does not impact on people in a general sense or provide a moral and ethical code by which people choose to live their lives.

The decision

The employment judge decided that although membership of the SNP and a belief in its values is not enough of itself to constitute a philosophical belief, Mr McEleny’s belief in Scottish independence was a sufficiently cogent and important view to be a philosophical belief. His views on independence were more than just a political opinion and were based on a fundamental belief that Scotland has a right to self-govern. The judge found that sovereignty and self-determination were ‘weighty and substantial aspects of human life’, being persuaded that ‘how a country should be governed is sufficiently serious to amount to a protected philosophical belief’.

The case was set to go back to the tribunal to determine whether or not Mr McEleny had in fact been discriminated against but the MoD is appealing against the finding.

Comment

Although this issue was decided at employment tribunal level and is being appealed, it is being seen as a potential landmark decision and has been given significant media coverage. Brodies’ Head of Employment Law, Tony Hadden, predicted a challenge of this type back in 2014 prior to the referendum vote. Employees can be expected to be more aware of the issues raised in the case than previously.

It should be remembered that whether any belief is protected under the Equality Act will depend on the facts and whether, and to what extent, the belief affects how the person lives their life. Just because a belief has been protected in the past does not necessarily mean that the same conclusion would be reached in a different case.

We will update this blog when more information is available on the MoD’s appeal.