Acas recently published new guidance on religion and belief to help employers prevent discrimination on these grounds in the workplace. To assist employers further, we’ve produced another series of “myth busters” to help separate fact from fiction in this area, all of which will be published on our website over the coming weeks. Of course, if you’re an employer and would like to discuss any of the issues touched on in these posts, please contact one of our HR consultants in confidence and without delay for some initial advice free of charge and without obligation.

 

Myth:

I can count any belief I hold as a philosophical belief and therefore a protected characteristic.

Fact:

Under the Equality Act 2010, it is unlawful to treat a person less favourably on the grounds of their religion or their religious or philosophical belief, but the question here is what would qualify as “philosophical belief” under the legislation? Unfortunately the answer to that question is neither easy nor clearly defined.

Originally the law stated that, to be covered, a philosophical belief had to be ‘similar’ to a religious belief, but that requirement was removed on 30 April 2007. Whilst this amendment widened the range of beliefs that would be protected, there is still no precise definition of what is covered.

The EAT concluded in Grainger v Nicholson that there was no doubt that some limit must be placed upon the definition of “philosophical belief”. Considering previous EAT cases alongside case law relating to the European Convention of Human Rights, they set out some guidance on the matter stating that in order to fall under the protection of the provision:

 

  • the belief must be genuinely held;
  • it must be a belief rather than an opinion or viewpoint based on the present state of information available;
  • it must be a belief as to a weighty and substantial aspect of human life and behaviour;
  • it must attain a certain level of cogency, seriousness, cohesion and importance; and
  • it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

 

Following on from this judgment, the Explanatory Note of the Equality Act 2010 now echoes these criteria, adding that:

 

  • any cult involved in illegal activities would not satisfy these criteria;
  • beliefs such as humanism and atheism would be beliefs for the purposes of this provision; whereas adherence to a particular football team would not be.

 

The EAT has since concluded in Harron v Chief Constable of Dorset Police that the proper approach to determining whether or not there is a qualifying belief is not just to apply the five criteria set out in Grainger, but to also have regard to the way in which those criteria are applied and suggested that the requirements should not be set at too high a level.

Cheryl Moolenschot, Litigation Consultant at EML, comments…

 

“It would be safe to say that this question will require further judicial testing. More guidance would be welcomed when it comes to defining philosophical belief as it would no doubt assist both Employers and Employment Judges alike. One area that poses particular difficulty, especially in today’s climate, is to what extent political beliefs may be protected. Whilst support of a specific particular party was historically unlikely to amount to a philosophical belief, a political doctrine or philosophy such as Socialism, Capitalism or Conservatism (to name but a few) may well attract the protection of the legislation. That said, following the ECHR judgment in Redfearn v United Kingdom it would not be surprising if tribunals now adopted a more liberal interpretation of ‘philosophical belief’ so as to protect political beliefs and potentially also membership of a political party going forward.”