A philosophical belief based on science is protected by the Employment Equality (Religion or Belief) Regulations 2003

Grainger Plc v Nicholson [2009] UKEAT/0219/09/ZT

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10/12/2009


This important case discussed a preliminary issue, of whether the belief avowedly held by Mr Nicholson the Claimant was a valid philosophical belief and therefore capable of protection by the 2003 Regulations.
The case is of major importance to workers facing discrimination because of beliefs they may be holding as it is now recognised that a belief does not have to be a major, accepted belief, or even held by more than one person, but that it is sincerely held and is logical and capable of being lucidly explained. The courts do however reserve the right to put any belief to the test, which will mean cross examination to test the truth of any assertion of a belief held.

The employer claimed that the claimant's employment was terminated on grounds of redundancy, and Mr Nicholson claimed that his dismissal was unfair and that he was discriminated against contrary to the 2003 Regulations for his philosophical belief about climate change and the environment.

  • A philosophical belief based on science (here man-made climate change) rather than religion is protected under the Employment Equality (Religion or Belief) Regulations 2003
  • A "philosophical belief must attain a certain level of cogency, seriousness, cohesion and importance, must be worthy of respect in a democratic society and must not be incompatible with human dignity. Therefore an example of a belief that might meet this description is humanism, and examples of something that might not … would be support of a political party or a belief in the supreme nature of the Jedi Knights (Baroness Scotland, Attorney General 2005 p1109 - Hansard)
  • The belief must be similar to a religious belief
  • ECHR jurisprudence is relevant. The limitations on the concept and extent of a religious belief will apply directly to that of a philosophical belief.
  • It is legitimate for a court to enquire into the genuineness of a claimant’s professed belief(p5)without trying to judge its validity
  • “the test for determining whether views can properly be considered to fall into the category of a philosophical belief is whether they have sufficient cogency, seriousness, cohesion and importance and are worthy of respect in a democratic society" ( Campbell and Cosans v United Kingdom)
  • Eweida v British Airways plc [2009] ICR 303 (religious belief - BA stewardess wearing a cross)was referred to
  • The effect of McClintock is to give the courts the power to limit with a test for reasonableness ECHR Article 9 (2) (protection of the manifestation of a belief, eg the wearing of a cross, veil, chastity ring...).

The Claimant wished to bring a case for discriminatory unfair dismissal using the Employment Equality (Religion or Belief) Regulations 2003. This case was not about the merits of the case but of whether a philosophical belief is on a par with that of a religious one. Judge Burton in the EAT decided that it is, under both UK and EC law.
Mr Nicholson stated that he holds a strongly held philosophical belief about climate change and the environment and lives his life according to these values. The first thing the EAT did was to overturn the Employment Judge's ruling that the truth of the Claimant's holding such a belief need not be looked into. Judge Burton quoted Lord Nicholls in R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246 at para 22 in that, the "court is concerned to ensure an assertion of religious belief is made in good faith … But, emphatically, it is for not the court to embark on an enquiry into the asserted belief and judge its ‘validity’ ".

There were three main issues to be decided by the appeal namely:
(i) How far a philosophical belief needs to be similar to a religious belief to be protected under the Regulations?
(ii) Whether limits should be placed on words “philosophical belief”? The employer's counsel argued that:
"(a)it must be a ‘settled’ belief, part of a system of beliefs; and/or
(b)it must be a philosophical belief and not a political belief, one based upon political opinions, such as, for example, fascism; and/or
(c)it must not be a scientific belief based upon conclusions drawn from science and resulting from research or the gathering of information.2
The EAT rejected all of these arguments.

The judgment of the European Court of Human Rights in Campbell and Cosans v United Kingdom [1982] 4 EHRR 293 was referred to whereby the argument that the system of corporal punishment in Scottish state schools offended the complainants' philosophical convictions under Article 2 of Protocol 1 of the ECHR was upheld.

The European Convention On Human Rights (ECHR)was quoted to show that 'belief' does not need to be a philosophical one:
Article 9(1): “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice, and observance.”

McClintock v Department of Constitutional Affairs [2008] IRLR 29 was referred to (here the Employment Appeal Tribunal refused to accept unhappiness with same-sex adoption as being covered by the ECHR Article 9 (2)provision for manifested belief - an actual and positively asserted belief is essential. The effect of McClintock was to give the courts the power to limit ECHR Article 9 (2)to a test for reasonableness.

Judge Burton overturned the ET judge's 'distinguishing'(recognising as different)the case of McClintock and this one, accepting that the belief here was a real belief. Judge Burton substitued instead a ruling that, "“the asserted belief held by the Claimant upon which he bases his claim of discrimination is capable of being a belief for the purposes of” the 2003 Regulations." Also Article 14 ECHR (the general prohibition of discrimination): “rights and freedoms....without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion...”

The transcript of this case follows:-   Grainger Plc v Nicholson [2009] UKEAT/0219/09/ZT

Some recent employment cases:-
2009
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Under TUPE the obligation to inform always applies, even when no measures are contemplated relating to the transfer - Cable Realisations Ltd v GMB Northern [2009] UKEAT
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Veakins v Kier Islington Ltd [2009] EWCA Civ 1288 For s4A(3) of the DDA to apply the employer must have known (or ought to have known) that the employee was disabled and that the disability would affect him in the manner described in section 4A(1) - DWP v Alam [2009] UKEAT 0242_09_0911
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In cases of discriminatory dismissal tribunals may reduce compensation if the worker would in any event have been dismissed - Chagger v Abbey National Plc & Anor [2009] EWCA Civ 1202
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Redundancies - ECJ rules that consultations do not need to begin until the parent company decides which subsidiary will be affected - Akavan Erityisalojen Keskusliitto AEK ry and Others v Fujitsu Siemens Computers Oy - ECJ [2009] Case C-44/08
ECJ rules holiday entitlement must not be lost through illness - Pereda v Madrid Movilidad SA - ECJ [2009] C-277/08



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