In Harron v Dorset Police the EAT has confirmed that when determining whether a belief is a "philosophical belief" protected by the Equality Act 2010, Tribunals must apply the facts of the case to: (i) the five criteria set out in Grainger plc and Ors v Nicholson; and (ii) the principles identified by the House of Lords in R(Williamson) v Secretary of State for Education and Employment. Where the Tribunal makes any decision as to whether any of these criteria or principles are or are not met, it must provide specific and detailed reasons for its findings in its judgment.
Background
The Equality Act 2010 prevents discrimination against employees in the workplace on a number of grounds, known as "protected characteristics". These are listed in section 4 of the Act and include the ground of religion or belief.
Under section 10(2), belief means "any religious or philosophical belief". Whilst the meaning of a religious belief may be self-evident, the meaning of "philosophical belief" is less certain and has, as a result, been considered extensively in case law.
In the House of Lords case, R(Williamson) v Secretary of State for Education and Employment for example, the Lordships agreed that for a philosophical belief to be protected under Article 9 European Convention of Human Rights and Fundamental Freedoms (EHRC), certain modest, objective minimum requirements should be met including that:
- The belief must relate to matters more than merely trivial;
- The belief must be coherent in the sense of being intelligible and capable of being understood; and
- The threshold for determining whether any such requirement is met must not be set too high.
The meaning of "philosophical belief" was also considered in Grainger plc and Ors v Nicholson and, following Williamson, established five criteria for the determination of whether a belief qualified for protection as a "philosophical belief" under the Equality Act 2010. These criteria, known as the Grainger Criteria, are that the belief:
- Must be genuinely held;
- Must be a belief, as opposed to an opinion or viewpoint based on information;
- Must be a belief as to a weighty and substantial aspect of human life and behaviour;
- Must have a level of cogency, seriousness, cohesion and importance; and
- Must be worthy of respect in a democratic society and not be incompatible with human dignity or conflict with the fundamental rights of others
Facts
The Claimant had worked for the Dorset Police force since 2008 and held a belief in the proper and efficient use of money in the public sector. The Claimant felt compelled to express these views, making a number of proposals for changes to the working practices of the Dorset Police force. As a result of his expressing these views, the Claimant claimed that he then suffered discrimination on the ground of his philosophical belief.
Employment Tribunal decision
The Employment Tribunal held that the Claimant's belief only met two of the five Grainger Criteria, namely that the belief was genuinely held and that it was worthy of respect in a democratic society.
In deciding that the second criterion was not met, the Tribunal stated that the Claimant's views were a set of objectives or values rather than a belief. Further, as the Claimant's values did not have a status similar to a religious belief, and as they were confined to the workplace rather than a weighty aspect of human life, they did not have the requisite level of seriousness and importance to meet the third and fourth criteria.
Accordingly, the Claimant had not been discriminated against on the grounds of a philosophical belief as alleged. The Claimant appealed.
EAT decision
On appeal, the Claimant argued that the Tribunal had set the bar too high when applying the Grainger Criteria, particularly in the light of the wide protections given under Article 9 of the EHRC. He also argued that it had not given sufficient reasons for its decision that three of the five criteria had not been met.
The EAT decided that:
- The Tribunal Judge had not expressly applied the complementary criteria set out by the House of Lords in Williamson when applying the Grainger Criteria; and
- The Tribunal had failed to provide sufficient reasoning behind its decision that three of the five Grainger Criteria had not been met on the facts.
As a result, it was not clear whether the Tribunal had approached the application of the Grainger Criteria correctly. It was not enough for the ET to merely set out the wording of the Code of Practice or Grainger Criteria and state the Claimant's belief did not qualify. Rather the ET should give express and specific reasons for its decisions.
In addition, without such express reasoning from the Tribunal, the EAT could not agree that the second of the Grainger Criteria was not met because the reasoning behind the Tribunal's decision to distinguish the Claimant's values/objectives from a protected belief was not clear. As it stood there was a risk that the Tribunal had set the bar to the second criterion too high (thereby ignoring the principles of Williamson).
Further, the Tribunal should also have expressly referred to the principles in Williamson and applied these to the Claimant's case. In particular, while a belief that related solely to the workplace may be too narrow to qualify for protection, the Tribunal should have acknowledged in its decision that Williamson requires: (i) a belief only to be more than merely trivial and capable of being understood; and (ii) that the standard in respect of the third and fourth Grainger Criteria should not be set too high. Had it done so, it might have been open to the Tribunal to find that the third and fourth of the Grainger Criteria had been met by the Claimant.
Accordingly, the EAT could not confirm that the Tribunal had not erred in law. The case was remitted to the Tribunal for re-determination.
Comment
It should be noted that this case does not expressly say that a belief in "the proper and efficient use of money in the public sector" is a philosophical belief capable of protection. What it does indicate, however, is that the Tribunal (and presumably the Respondent employer before it) should take care when deciding whether an employee's belief is sufficiently serious, cogent and important to warrant such protection because the threshold for a qualifying belief can be very low.
When analysing such a belief, the principles of Grainger and those of Williamson should both be expressly applied. What is more, the Tribunal should take care to fully document any reasons justifying a decision that a belief is or is not capable of protection under the Act.
