Can a belief in English Nationalism be a protected belief? This issue was tested in the Employment Appeal Tribunal judgment in Thomas v. Surrey and Borders Partnership NHS Foundation Trust.
Background
Under the Equality Act 2010, it is unlawful to treat someone less favourably due to their religion or philosophical belief.
In this case, Mr Thomas had been engaged through an employment agency to delivery consultancy services to an NHS Trust for just under three months, until the Trust discovered that he had failed to disclose a prior unspent conviction on his application, and terminated his assignment accordingly.
Despite this, Mr Thomas believed the actual reason for his dismissal was his belief in English Nationalism: he had participated in political activities, including running for office with the English Democrats, a far-right English Nationalist party. Mr Thomas argued his political campaigning was an expression of his philosophical beliefs, and therefore constituted a protected characteristic under the Equality Act. He subsequently issued claims of unfair dismissal due to discrimination at the Employment Tribunal (ET).
Decision
In the first instance, the ET held that the Claimant’s beliefs are not capable of being a protected characteristic. The ET applied the Grainger criteria to establish whether the Claimant’s beliefs qualified as a philosophical belief worthy of protection, highlighting requirements for the belief not to conflict with fundamental human rights and to be worthy of respect in a democratic society. Within their reasoning, the ET cited multiple instances in which the Claimant had expressed anti-Islamic views on social media, calling for actions such as the deportation of Muslims from the UK.
The ET determined that although the Claimant’s beliefs were genuinely held and sufficiently serious to constitute a philosophical belief under the meaning of the Act, the Claimant’s English Nationalist views did not merit protection because Anti-Islamic sentiments expressed by the Claimant violated the provision of fundamental rights, especially the right to freedom of religion.
The Claimant appealed the decision, but the appeal was dismissed by the Employment Appeal Tribunal, which upheld the judgment that while the Claimant’s beliefs might in theory be protected, his anti-Islamic beliefs fell outside the scope of legal protection, as these views did not align with the core values of human dignity and a democratic society.
Lessons for Employers
This judgment shows that while beliefs have the potential to receive protection under discrimination law, views that promote intolerance such as advocating against a particular religious group are not protected. The case serves as an important reminder of the need for philosophical beliefs to not undermine the rights of others in order to be protected.
It is important to make a distinction between the protection of free speech and campaigning against the fundamental rights of people with protected characteristics, notably those with religious beliefs. Employers should remain aware of the distinction between holding beliefs and how beliefs are reflected in behaviour, with beliefs that result in discriminatory behaviour unlikely to meet the definition of a protected characteristic.
There is considerable complexity within this area of law, which leads to a heightened risk of potential claims being brought for discrimination. Employers should put comprehensive discrimination policies in place in order to mitigate this risk. Within this framework, it will be helpful for employers to outline policies on cultural and religious diversity, protection of beliefs, and acceptable use of social media, which will help to inform future decision making.
How we can help
For further information, or to discuss the issues raised within this case, please contact us to speak to a member of our Employment Team.
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