Does really just anything count as a philosophical belief these days? An impression you could reasonably take away from the headlines in the Employment Appeal Tribunal’s decision in Harron –v- Chief Constable of Dorset Police last week but happily not one completely borne out by closer reading.
Mr Harron considered himself to have been discriminated against on grounds of disability and philosophical belief. The Employment Tribunal rejected both allegations and Mr Harron took them off to the EAT on the grounds that its decision was insufficiently clear to allow him to understand why he had lost.
The EAT began by making some not even remotely condescending remarks about Employment Tribunal judgements generally – “it is well recognised that Tribunal judgements cannot be expected to be the finest pieces of legal draftsmanship. Infelicities and awkwardness of expression must be excused” (not sure how I would feel about that if I were an Employment Judge of impeccable legal career and many years’ standing!) – but then moved on to the merits of the two appeals.
On the discrimination side, part of Mr Harron’s case was that Dorset Police should not have assumed from his silence on the point that he was not disabled. He argued that people who suffer from mental disabilities are frequently reluctant to the point of silence to say anything to their employers about it, and that an absence of complaint should not therefore be held against them. Accepting this as true in part, the EAT nonetheless rejected the disability appeal. “The absence of evidence, though it might be explained”, it said, “cannot amount to a presence of evidence, and the Tribunal has ultimately to reach its conclusion on the evidence before it”.
The philosophical belief which Mr Harron contended for was “a belief in the proper and efficient use of public money in the public sector”. At the Tribunal the Employment Judge had measured that credo against the five established criteria for a protectable belief set out in Grainger –v- Nicholson in 2009, and had found it wanting. It was accepted that Mr Harron’s belief was genuine and that it was worthy of respect in a democratic society. However, the Employment Judge was not convinced that it was a belief as opposed to just an opinion, that it related to “a weighty and substantial aspect of human life and behaviour”, or that it had attained the necessary degree of cogency, cohesion and importance.
But the Employment Judge, though fully entitled to reach those views, did not explain fully how he had reached them. In particular, he had not obviously considered where the boundaries were around “weighty and substantial” and he had paid no overt heed to the guidance of the House of Lords (now Supreme Court). Their Lordships had said in a case back in 2005 that a belief which was “more than merely trivial” was potentially substantial enough, and that in both that respect and in relation to cogency, “not too much should be demanded [of a claimant] in this regard”. Overall, said the EAT judge slightly tortuously, the Employment Tribunal had not “said sufficient to persuade me that an error of law may not have been committed”. The case was therefore sent back to the same Employment Tribunal for it to apply the right tests and have another go.
Lessons for Employers:
This case does not say that a belief in the evils of the wasting of public money by public services is a belief protectable under the Equality Act.
It does not say that Dorset Police were not ultimately entitled to react badly to Mr Harron’s frequent internal complaints to that effect.
It does not say either that a belief is protectable even if it is just about what others would regard as common sense – too obvious to go to the lengths of consciously advancing it as such in circumstances where you would also think a whistleblowing argument might have been a better bet.
What it does say, however, is that as employer you need to very careful before dismissing such concerns as somehow self-interested, wilful meddling or the product of some one-issue campaigner without enough to do. While it is likely that the reconvened Employment Tribunal will still dismiss Mr Harron’s claim, that is not guaranteed. And even if it does so on this occasion, we are left with the clear steer from the Tribunal system that the threshold of a protectable belief is low and getting lower.