Discrimination based on “Protected Belief”

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Section 10 of the Equality Act 2010 sets out that “religion or belief” is a protected characteristic, meaning that it is unlawful to discriminate against someone because of their “religion or belief”. In this article we consider the definition of “belief” in light of recent case law.

The Equality Act 2010 does not set out a list of beliefs that would qualify for protection, nor does it include a comprehensive definition of “belief”. Instead, the statute has left the courts and tribunals to determine which philosophical and political beliefs qualify for protection, on a case-by-case basis. Philosophical beliefs do not attract any lesser protection under the Equality Act than religion or religious beliefs, and the protection extends to those who suffer discrimination on the ground that that they are not members of a particular religion or hold a particular belief.

The test for whether a belief qualifies for protection was set down in the case of Grainger plc v Nicholson 2010 ICR 360. Here, the Employment Appeal Tribunal (EAT) held that beliefs based on political philosophies may be capable of protection under s10. It laid down the “Grainger Criteria” whereby a belief can only qualify for protection if it:

  • Is genuinely held;
  • Is not simply an opinion or viewpoint based on the present state of information available;
  • Concerns a weighty and substantial aspect of human life and behaviour;
  • Attains a certain level of cogency, seriousness, cohesion and importance; and
  • Is worthy of respect in a democratic society, is not incompatible with human dignity and is not in conflict with the fundamental rights of others.

Two recent cases illustrate the application of Grainger Criteria in practice.

In Scottish Federation of Housing Association v Jones 2022, the fourth element of the Grainger Criteria was considered by the Scottish EAT. In the case, Ms. Jones informed her employer that she wished to stand for election for Scottish Labour. The employer did not consent, and she withdrew her candidature.The following month she was dismissed. Ms. Jones asserted that dismissal was discriminatory on the ground of protected belief. She said she had the belief in participatory democracy and that persons should stand for office if democracy is to thrive. The EAT held that this belief was a serious one as it related to securing participation in parliamentary democracy, and without such engagement democracy as a mode of government would lose its legitimacy. The EAT also held that the belief was cohesive insofar as it fits with other aspects of her belief system.

The widely publicised case of Forstater v CGD Europe 2021 saw the EAT turn its attention to the fifth element of the Grainger Criteria. The claimant in the case believes that sex is biologically immutable, in other words that there are two sexes: male and female, and that it was not possible to change sex. Here the tribunal required to determine whether the claimant’s “Gender Critical Beliefs” qualified for protection. In the case the judge observed that the fifth Grainger criterion excludes the most extreme beliefs akin to Nazism or totalitarianism, which incite violence or hatred. As the claimant believed that it was not incompatible to recognise that human beings cannot change sex, while also protecting the human rights of transgender people, her belief, although it may cause some offence to trans people, was not a belief which sought to destroy the rights of trans people. It therefore satisfied the fifth element of the Grainger Criteria. The claimant was held to have a protected belief.

It is important to note that the possession of a protected belief does not allow those who have that belief to act with impunity should the manifestation of that belief impinge on the rights of others. For example, if the manifestation of the individual’s alleged gender critical belief resulted in them purposefully misgendering a trans colleague or refusing to work alongside them, then the fact that they had a protected belief would not automatically shield them from liability.

The take home lesson from all of this is that tribunals will assess whether a claimant’s belief qualifies for protection on a case-by-case basis, and that beliefs that may qualify for protection however unusual, potentially offensive, idiosyncratic or indeed obvious, they may appear to be.

If you consider you may have been discriminated against because of your religion or belief, please do not hesitate to contact our employment law experts.

Email Alice Bowman
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