In this case the Employment Appeal Tribunal (EAT) held that a belief in English nationalism could, in theory, be a protected belief under section 10 of the Equality Act 2010 (EqA). However, as the claimant's belief in English nationalism included a belief that there is no place in British society for Muslims or for Islam, his belief did not qualify for protection. Whilst the claimant was not prevented from holding his views, he did not have the right to bring a claim under the EqA that he had been discriminated against in relation to them.
Background
The EqA prohibits discrimination on the basis of religion or philosophical belief. In 2010, the EAT gave guidance about the kinds of belief that should be protected, setting out five criteria for establishing a protected belief. These are known as the “Grainger” criteria (after the case in which this guidance was given). The fifth Grainger criterion is that the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
The EAT considered the fifth Grainger criterion in further detail in 2021, specifying that it would only exclude from protection beliefs that would have the effect of destroying the rights of others, such as beliefs "pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms". By contrast, beliefs that are "offensive, shocking or even disturbing to others" may still meet the fifth Grainger criterion and qualify for protection. (The EAT gave this guidance in the case of Forstater v CGD Europe and others, which concerned a claimant with "gender critical" beliefs. For further information about this case, see our previous alert, here.)
The Facts
Mr Thomas was engaged through an agency to provide consultancy services to Surrey and Borders Partnership NHS Foundation Trust (the Trust) for just under three months. Shortly before this engagement was due to expire, the agency notified Mr Thomas that the Trust was terminating his assignment because it had discovered that he had an unspent criminal conviction which he had failed to declare during the recruitment process.
Mr Thomas alleged that the real reason for the termination of his engagement was the fact that he had stood for political office as a representative of the English Democrats and that his dismissal therefore amounted to discrimination on the basis of his philosophical belief in English nationalism.
At a preliminary hearing, the employment tribunal considered whether the claimant’s philosophical belief was protected by the EqA. The employment tribunal held that while English nationalism could constitute a protected belief, Mr Thomas's particular belief was not protected under the EqA because the anti-Muslim element meant that it failed to meet the fifth Grainger criterion. In reaching its conclusion, the tribunal took into account various statements that Mr Thomas had made on social media, which included the use of the hashtag "RemoveAllMuslims". In the tribunal's view, Mr Thomas's "disdainful and prejudiced focus on Islam" took his belief outside the protection of the EqA. Mr Thomas appealed to the EAT.
The EAT dismissed the appeal. It noted that it is only in exceptional and extreme cases that an individual's belief will not be protected under section 10 EqA. In this case, however, the tribunal had been correct to find that Mr Thomas's belief fell on the wrong side of the line. The version of English nationalism in which Mr Thomas believed was one in which there was no place in society for Muslims or Islam; this shared features with Nazism, which did not see any place for Jews within German society. Such views would necessarily stir up disdain and, therefore, hatred of Islam and Muslims. They therefore fell within the grave forms of "hate speech" that would not be protected.
What this means for employers
When dealing with employees who hold potentially controversial beliefs, it can be difficult for employers to assess whether those beliefs would qualify for protection under the EqA. This case is helpful as it provides some further guidance to employers on just where the line can be drawn. Indeed, both this case and the earlier decision in Forstater make clear that the bar to protection of a philosophical belief under the EqA is low; unless an employee's beliefs are akin to Nazism or otherwise espouse violence or the gravest forms of hatred, they will be protected.
The scope of this protection may be of particular concern for employers dealing with any fallout from the recent UK-wide protests and riots by far-right groups, or indeed the ongoing conflict in the Middle East, as discussion of such events in the workplace may well provoke strong feelings and lead to disharmony between employees with differing viewpoints. Employers should ensure that they handle such issues with care and sensitivity. However, they can take comfort in the fact that there is a distinction between an employee's right to hold particular beliefs and their right to manifest them at work. Even where an employee's beliefs qualify for protection, if their expression of those beliefs gives rise to harassment of or discrimination against a colleague, then the employer could be within its rights to take appropriate disciplinary action, potentially including dismissal. This will require a careful assessment of all the relevant circumstances in each case.
