A spate of ‘freedom of thought and conscience’ cases have rippled through British employment tribunals. The courts have laboriously scrutinised beliefs about the London 7/7 bombings, fox hunting, global warming, public broadcasting, humanism, ‘left-wing democratic socialism’ and so on. Overwhelmed by the excitement no one has noticed that claimants are wasting their time.
In the UK belief refers to ‘any religious or philosophical belief’. In the landmark global warming case, Grainger Plc v Nicholson (2010), Justice Burton set out criteria for ‘philosophical beliefs’ which would attract protection in law. Such beliefs must be genuinely held, transcend mere opinion or viewpoint, relate to a substantial aspect of life, attain a certain level of cogency, seriousness, cohesion and importance, be worthy of respect in a democratic society and not conflict with the fundamental rights of others.
Justice Burton also observed: ‘To establish a religious belief, the claimant may only need to show that he is an adherent to an established religion. To establish a philosophical belief … it is plain that cross-examination is likely to be needed’
A review of the law by Oxford Brookes University – commissioned by the Equality and Human Rights Commission – noted there has been considerable debate about the definition of belief.
Some commentators have argued that protecting too broad a set of religions or beliefs ‘leads to a real danger of trivialising the equality principle’ (Pitt, 2011), or watering down the concept of religion or belief so as to bring it into disrepute (Donald, 2012: 54). An alternative view of the breadth of the emerging definition of belief, as outlined by the Public and Commercial Services Union in the EHRC’s call for evidence, is that it ‘provides a broad level of protection and promotes tolerance more effectively than a narrower protection would’ (Mitchell and Beninger, 2015: 156). Other participants in the call for evidence however, considered that the lack of a definition of belief was unhelpful and caused confusion (Mitchell and Beninger, 2015:
The report discusses alternative approaches to the current (“generally consistent and clear”) legal framework, in particular the possibility of a duty of reasonable accommodation of religion or belief by employers. It emphasises this in no way suggests that the EHRC prefers any of these to the current legal model, and that the EHRC plans to publish a report setting out its own views by the end of 2015.
The report cites GMB v Henderson which acknowledged “the law does not accord special protection to one category of belief and less protection for another. All qualifying beliefs are equally protected.” But it also found “the definition of belief, particularly in equality legislation, merits further assessment.The broad definition currently being applied by the courts is unclear, particularly for belief systems which are based upon scientific evidence. This results in apparent inconsistencies between judgments, particularly at Employment Tribunal level.”
Although the issue of clarity is important there is a more fundamental problem. The device of the ‘philosophical belief’ itself is flawed and provides little assistance in securing protection from discrimination. This has been highlighted in a Court of Appeal judgment given by Lord Justice Underhill last year in Maistry v BBC.
Here the claimant alleged he had been discriminated against for holding a belief in the BBC Values which exist to promote the Corporation’s public purposes. The BBC Management Board says the organisation must live and breathe its values. All employees are expected to understand, believe and adhere to these Values. The BBC’s ‘Respect at Work Review’ – published in the aftermath of the Jimmy Savile scandal – says:
The BBC Values are widely disseminated and published on our internal and external websites. They are printed on the back of most BBC identity cards. They represent a distillation of the essential mission and vision of the BBC and should be at the heart of everything the BBC does, and the way in which it conducts itself…The BBC is an organization which inspires a strong affiliation from the majority of people working with it. The BBC mission is often a personally shared endeavour and it is a cause for real pride to be part of it. Our staff and managers believe strongly in the BBC Values and are committed to trying to make the BBC a good place to work.
In February 2011 a Tribunal chaired by Employment Judge Pauline Hughes found that a belief in the BBC Values amounted to a ‘philosophical belief’. She rejected the BBC’s argument that the Values were merely a mission statement. Judge Hughes described the claimant’s belief -in short- as a belief in the higher purpose of public service broadcasting and allowed the case to proceed to trial.
The BBC’s defence was that it could not have discriminated as its managers could not have known of the claimant’s belief. The claimant’s response was that the BBC must be aware of a belief it encourages.The matter was finally settled by Lord Justice Underhill. Here is the relevant paragraph:
13. The Applicant’s essential answer, as I have said, is that it was impossible that the individuals in question could have been unaware of his belief in BBC values given that they are pervasive in the BBC, and perhaps also because he had, in the case of the disputes which gave rise to the acts of complaint or acts complained of, referred to those values, as the Tribunal acknowledged in the passage that I have read. But I am afraid to say that I do not believe that it is arguable that a generalised assumption that senior management employees will subscribe to BBC values can be equated with the knowledge that a particular employee has a philosophical belief in those values. That is not the same thing. The fact that to the applicant those values constituted a belief with similar status and cogency to a religious belief does not mean that will be so in every case. To others it might indeed be no more than their employer’s mission statement about the values that they were expected to observe at work.
In short for BBC managers to be capable of discrimination they would have to be aware that the claimant held a philosophical belief in the Values. But as a philosophical belief can only be established by a tribunal, an employer can always claim to be unaware of a philosophical belief at the relevant time. Going by the judgment, proving discrimination on the grounds of belief is impossible in Britain.
It is unfortunate that the Oxford Brookes review has left out of account a Court of Appeal judgment that undermines entirely the legislative framework for protecting freedom of belief. Clarification is in order.