Nicholson v Grainger – Employment Appeal Tribunal ("EAT")

In September 2009, we reported the Employment Tribunal's decision from a pre-hearing review in this interesting case. This decision dealt with the complicated issue of what may be classified as a "belief" within the meaning of the Employment Equality (Religion or Belief) Regulations 2003 (the "Regulations"), and thereby gain protected status. Please click on the link to access the article: http://www.twobirds.com/English/Publications/NewsLetters/Upload/Equality-Diversity_09.09.htm

Background facts and Tribunal decision

Mr Nicholson was dismissed in July 2008 by Grainger. He claimed unfair dismissal and discrimination under the Regulations on the grounds of his 'strongly held philosophical belief about climate change and the environment'. He argued that his belief in climate change was not merely an opinion but a philosophical belief which affects how he lives his life and influences matters such as his choice of home, how he travels, what he eats and drinks, how he deals with waste, and his hopes and fears.

The Tribunal decided that such a belief was covered by the Regulations. The employer appealed to the EAT.

The EAT's decision

The EAT upheld the Tribunal's decision and provided much needed guidance to this area of the law within its Judgment. It brought together and cited a number of principles from established case law, particularly within the human rights field, and added a few additional principles of its own.

For a philosophical belief to qualify for protection under the Regulations, the EAT held that it 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; and
  • have a similar status or cogency to a religious belief (although it need not constitute or allude to a fully-fledged system or thought provided it meets the above criteria, i.e. it need not amount to an "ism").

The EAT also held that:-

  • the fact that a philosophical belief is not shared by others does not preclude it from gaining protection under the Regulations;
  • support of a political party does not meet the description of a philosophical belief, but a belief in a political philosophy or doctrine may well qualify; and
  • there is no reason why a philosophical belief based on science would not be protected by the Regulations.

Furthermore, due to the unusual nature of the asserted belief and its alleged manifestation, the EAT held that Mr Nicholson would need to give evidence and be cross-examined as to the genuineness of his belief.

Comment

Faced with seemingly infinite possibilities, the EAT accepted that there need to be limitations on the definition of "philosophical belief" for the purpose of the Regulations. Employers should be mindful of this decision as it provides useful guidance as to what these limitations are, and how they are to be applied by the courts, and should therefore exercise caution when dealing with a situation that could trigger the operation of the Regulations.

Importantly, the EAT confirmed that it will be for the Claimant to prove to the Tribunal that a particular belief is genuinely held, which will involve evidence being given and cross examination on this issue. If a Claimant fails to demonstrate this, his or her claim under the Regulations must fail.