An Employment Tribunal has reaffirmed its previous decision that a belief in Scottish independence can be considered a philosophical belief for the purposes of protection from discrimination under the Equality Act 2010. The judgment has not been published, but the case has been widely reported (McEleny v Ministry of Defence, ET, 2019)
The Equality Act 2010 provides for protection against discrimination based on certain personal characteristics. The characteristics which are covered by the Act and which give rise to this protection are known as "protected characteristics".
Where an individual has a protected characteristic, he or she is protected from direct discrimination. Direct discrimination will occur where a person (including an employer) treats an individual (such as an employee) less favourably than they would treat others because of the individual's protected characteristic.
One of the protected characteristics listed in the Act is religion or belief, which is defined as "any religious or philosophical belief." However, not all religions or beliefs will be covered by the Act and give rise to protection from discrimination. Whether or not a particular religion or belief is covered will generally be decided by the courts, and there are a number of cases which give guidance on this. The leading case is Grainger v Nicholson, where the Employment Appeal Tribunal established that a belief will give rise to protection where:
- it is genuinely held;
- it is a belief rather than an opinion;
- it is a belief as to a weighty and substantial aspect of human life and behaviour;
- it attains a certain level of cogency, seriousness, cohesion and importance; and
- it is worthy of respect in a democratic society, is not incompatible with human dignity and does.
In McEleny v Ministry of Defence, the question was whether the Claimant's belief in Scottish independence could amount to a 'political belief' which would give rise to protection against direct discrimination under the 2010 Act.
The Claimant, Chris McEleny, is the leader of the SNP group opposition on Inverclyde Council.
The Claimant was working as an electrician in the Ministry of Defence (MoD) munitions site in Beith, Ayrshire when he announced his candidacy for the SNP deputy leadership election in 2016. He alleged that, following this announcement, his security clearance was revoked by the MoD and he was suspended from his job. He was then questioned by the MoD's National Security Vetting on his suitability for clearance. He alleged that he was asked numerous questions about his mental health and his views on issues such as Trident, Irish politics and Rangers Football Club.
The Claimant was later reinstated but chose to resign from his job.
He subsequently raised a claim for constructive unfair dismissal and direct discrimination as a result of his belief in Scottish independence, which he argued was a philosophical belief. He sought to rely on the Grainger case, (referred to above), where it was held that an employee's belief in climate change should be protected under the Act.
The MoD argued that a belief in an independent Scotland could not amount to a philosophical belief for the purposes of the Act, and therefore was not a protected characteristic which could give rise to a claim for direct discrimination. This was on the basis that a belief in Scottish independence did not have a similar status or cogency to a religious belief, and was more akin to a political opinion.
The Employment Tribunal held that the Claimant's belief in Scottish Independence could amount to a philosophical belief which gave rise to protection against direct discrimination under the 2010 Act.
This was because his belief in Scottish independence was more than just a political opinion and was based on his "fundamental belief in the right of Scotland to national sovereignty". The Judge stated that this belief "has a sufficiently similar cogency to a religious belief… to qualify as a philosophical belief".
Further, the Judge found that that the Claimant's belief in Scottish independence satisfied the tests in Grainger, as set out above. In particular, that sovereignty and self-determination were "weighty and substantial aspects of human life", and that "how a country should be governed is sufficiently serious to amount to a protected philosophical belief."
This decision (which was originally made in August 2018), was appealed by the MoD, but it was upheld by the Tribunal in March 2019. The case will therefore now proceed to a full hearing on the question of whether or not the MoD's treatment of the Claimant amounts to direct discrimination.
On first glance, it looks as though this case may open the floodgates to a large number of claims being brought for discrimination on the basis of political beliefs.
However, the case does not necessarily mean that all political beliefs will be now be regarded as protected characteristics which may give rise to protection under the Act. In fact, the Judge was careful to distinguish between the Claimant's membership and support of the SNP generally on one hand, and his specific belief in the cause of Scottish independence on the other.
The Judge was also clear that not all of those who believed in Scottish independence would be considered to have a protected characteristic. The Claimant's belief in independence was rooted in his belief in the importance of Scotland's sovereignty, and not based on an opinion that it would improve social and economic circumstances in Scotland. This was not something which could be said of all of those who had voted for Scottish independence during the 2014 referendum.
Ultimately, this case does not change the fact that whether or not a belief is sufficient to amount to a philosophical belief giving rise to protection against discrimination under the Act will depend on the specific facts of each case.