In the recent employment tribunal case of Arya v London Borough of Waltham Forest, it was decided that an employee’s anti-Semitic beliefs could not be protected under the Equality Act 2010.
Mr Arya maintained that his former employer had discriminated against him on the basis of his belief that “the Jewish religion’s professed belief in Jews being ‘God’s chosen people’ is at odds with meritocratic and multicultural society”. The Tribunal considered whether the belief fell within the Equality Act protections by looking at the key criteria set down in the landmark case of Grainger v Nicholson:
- The belief must be genuinely held;
- The belief must be an actual belief and not just an opinion or viewpoint;
- The belief must relate to a weighty and substantial aspect of human life and behaviour;
- The belief must attain a certain level of seriousness; and
- The belief must be worthy of respect in a democratic society and not be incompatible with human dignity and/or conflict with the fundamental rights of others.
While the Tribunal was content that Arya’s belief satisfied the first four points, they could not conceive of it satisfying the final point. As such, it was decided that the belief could not be afforded protection as a philosophical belief and, consequently, the claim relating to discrimination and harassment was dismissed.
Interestingly, in the case referred to by the Tribunal, Grainger v Nicholson, it was decided that a belief in man-made climate change was protectable as a philosophical belief. It was argued that the claimant’s belief was more than just an opinion in that it affected his decisions in all aspects of his life (including diet, travel, housing, hopes and fears). Other tribunals have ruled that pacifism, humanism, an anti-fox hunting belief, and a belief in the “higher purpose” of public service broadcasting in promoting social cohesion were protectable, as was a belief in the ability of mediums to contact the dead.
Conversely, a belief against the adoption of children by same-sex couples, a belief that people should wear poppies from 2 November until Remembrance Sunday, and a belief that the September 11th and July 7th attacks were part of a global conspiracy, were all considered to be beyond the scope of the protection.
Impact for Employers
Philosophical belief discrimination is an extremely difficult area for Tribunals, and it is clear from the previous decisions that whether a belief is protected will very much depend upon the individual circumstances of the case. Each criterion set down in Grainger can be argued, and there is more than an element of subjectivity within the test. While Arya’s view was not considered protectable, there are many instances in which a seemingly controversial view will be deemed worthy of the same protections as mainstream religions.
Where an employee’s belief clashes with an employer’s business requirements, the employer will require to consider the potential for unlawful discrimination before acting. Direct discrimination because of religion or belief is not justifiable and will be unlawful. However, indirect discrimination (which is more likely to be the issue in most cases) may be justified and therefore lawful depending on the circumstances.