UK discrimination laws are wide-reaching and complex.
One area that is currently subject to debate and development is philosophical beliefs. People can hold vastly different views and beliefs, and employment tribunals typically give the meaning of ‘philosophical beliefs’ a wide interpretation, which can often be a source of much uncertainty as to the extent to which individuals’ beliefs are protected from unfair treatment in the workplace under the Equality Act.
The following guide for employers looks at the rules relating to discrimination, specifically in the context of what constitutes philosophical beliefs capable of protection from unfair treatment at work. We also look at some of the ways in which the risks of workplace discrimination, both in relation to beliefs and other protected characteristics, can be reduced.
What is workplace discrimination?
There are four types of discrimination that commonly arise in the workplace:
Direct discrimination is where an employer treats an employee less favourably because they possess a protected characteristic. This can include where a person is thought to possess a particular characteristic or is associated with someone who possesses a protected characteristic, also known as discrimination by perception or association.
In contrast, indirect discrimination is where the application of a provision, criterion or practice at work puts those people who possess a protected characteristic at an unfair disadvantage when compared with others who don’t share that same characteristic. This doesn’t need to be done intentionally by the employer, but the outcome is still unfair.
Harassment is subjecting someone to unwanted conduct, which is connected to a protected characteristic, that either violates their dignity or creates an offensive working environment — whilst victimisation is subjecting a person to a detriment because they’ve complained about, or supported a complaint about, discrimination or harassment.
What constitutes a protected characteristic?
Under the Equality Act 2010, there are nine protected characteristics including age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, sex, sexual orientation, race, religion or belief — including philosophical beliefs that a person may hold.
Under the Act, it’s unlawful for an employer to treat someone unfairly in the workplace because they possess, appear to possess or are associated with someone who does possess, any one of these characteristics, either by directly or indirectly discriminating against a person, or groups of people, or by harassing or victimising them.
What constitutes a philosophical belief capable of protection?
Under the Act, ‘belief’ is defined as any religious or philosophical belief, or lack of belief. However, whilst religious belief is relatively easy to recognise, in the absence of any statutory definition, identifying a philosophical belief can be much more of a challenge.
This means that guidance must be sought from caselaw where, in the 2009 case of Grainger Plc vs Nicholson, regarding the question of an employee’s conviction about climate change, the Employment Appeal Tribunal (EAT) set out five criteria when it comes to philosophical belief:
- the belief has to be one which is genuinely held
- it has to be a belief, and not simply an opinion or viewpoint that’s based on the present state of information available
- it has to relate to a weighty and substantial aspect of human life and behaviour
- the belief has to attain a certain level of cogency, seriousness, cohesion and importance
- it has to be worthy of respect within a democratic society, and not be incompatible with human dignity or conflict with the fundamental rights of others.
Essentially, an employee will only be afforded protection under the Equality Act if their own subjective belief meets all of these criteria. The philosophical belief doesn’t have to form part of a fully-fledged system of thought that governs the entirety of a person’s life, or even be a belief shared by others, but it must have a similar status or cogency to a religious belief. This encompasses philosophical beliefs such as humanism, atheism and spiritualism — although, to be capable of protection, a belief doesn’t necessarily need to amount to an ‘-ism’.
On the facts of Grainger, Mr Nicholson’s belief in man-made climate change was found to be a philosophical belief capable of protection under the Employment Equality (Religion or Belief) Regulations 2003. The 2003 Regulations preceded the 2010 Act, making it unlawful to discriminate on the grounds of religion or belief in either employment and vocational training.
What are examples of protected philosophical beliefs?
Whether or not a belief is a philosophical belief capable of protection under the Equality Act isn’t easy to predict, even with the benefit of the Grainger criteria, as a tribunal’s decision can also come down to the political and societal backdrop at any given time. However, there appears to be a current trend not to set the bar too high when it comes to the threshold requirements of those professing to have philosophical beliefs within an employment context.
In the 2020 case of Jackson v Lidl, the tribunal found that stoicism is capable of constituting a protected philosophical belief. On its’ facts, Mr Jackson had been dismissed after saying that “Asians were greasy”. In claiming discrimination by reason of his belief system, Mr Jackson maintained that he had a core belief in stoicism, making it important for him to say what he believed to be true, even if this offended people.
As a preliminary issue, the tribunal found that:
- stoicism was a moral belief system genuinely held by Mr Jackson
- he’d held a strong interest in, and adherence to, this belief system for a number of years
- stoicism is one of many philosophical beliefs which are parallel to religious beliefs
- Mr Jackson’s belief was a core and consistent part of his life
- even though many people would consider that saying something likely to cause offence isn’t acceptable in a modern democratic society, there’s no fundamental right not to be offended.
Similarly, in the 2020 case of Casamitjana Costa v The League Against Cruel Sports, the tribunal found that ethical veganism also qualifies for statutory protection. On its facts, Mr Casamitjana Costa was dismissed for gross misconduct after sending emails to colleagues expressing his opinion that the employer was unethically investing pension funds, as the finances were going to companies which were said to harm animals. It was argued on his behalf that the dismissal amounted to discrimination against his ethical vegan beliefs.
As a preliminary issue, the tribunal found that:
- Mr Casamitjana Costa genuinely and sincerely held his beliefs in ethical veganism
- he’d clearly dedicated himself to that belief through what he ate, where he worked, what he wore, the products he used, where he shopped and with whom he associated
- ethical veganism is a belief which seeks to avoid the exploitation of fellow species, making it a weighty and substantial aspect of human life and behaviour
- as this belief system concerns multiple aspects of daily living, with a well-established vegan community, this clearly attains a high level of cogency, cohesion and importance
- ethical veganism doesn’t in any way offend society, but rather is increasingly recognised nationally, especially because of the environmental benefits of observing a vegan lifestyle.
What constitutes a philosophical belief incapable of protection?
Not all claims that have recently come before the tribunals in the context of philosophical beliefs have succeeded. For example, in the 2019 case of Gray v Mulberry, the employment tribunal, EAT and Court of Appeal (CA) dismissed a claim for discrimination on the grounds of a philosophical belief in the sanctity of copyright law.
On its facts, Ms Grays’ employment was terminated without notice for refusing to sign a copyright agreement. Alleging discrimination under the Equality Act 2010, Ms Gray sought to rely on her professed and allegedly passionate belief in the right of an individual, not only to own, but to profit from and receive credit for their own work if they so wished.
The CA upheld the decisions below, and although it was accepted that Ms Gray strongly believed in the right of ownership to her own creative output, it wasn’t accepted that she held that belief as any sort of philosophical touchstone to her life. The CA also found that there was no causal link between either Ms Gray’s beliefs and her refusal to sign the agreement, or her employer’s decision to dismiss her, especially as Mulberry wasn’t even aware of her beliefs.
Still, each case will turn on its’ own facts, where the notion that the sanctity of copyright law could potentially amount to a protected philosophical belief wasn’t rejected outright.
Where do workplace risks lie when it comes to philosophical beliefs?
To succeed in a claim for unlawful discrimination based on philosophical beliefs, a claimant must not only satisfy all five of the Grainger criteria, but also be able to establish a causal connection between their professed beliefs and the unfair treatment in question. Still, the recent trend for tribunals to adopt a wide interpretation of philosophical beliefs creates a significant area of risk for employers that should not be overlooked. The potential scenarios here are limitless, for example, a genuinely held belief that the COVID-19 vaccine could seriously impact a person’s health could arguably be capable of statutory protection.
In cases where a claimant is able to demonstrate a genuinely and strongly held philosophical belief, concerning an important aspect of human life and worthy of respect, the law will protect that individual against unlawful discrimination in the workplace in relation to various key areas of employment. This can include pay and benefits, training and promotion, performance management, redundancy and dismissal. Equally, the right not to be discriminated against in the workplace is a right that arises even prior to employment, in the context of recruitment, where job applicants can also claim damages for unfair treatment.
It’s also worth noting that employers can be held accountable, not only for their own discriminatory conduct, but for the unlawful conduct of its employees. This means that if the employer fails to take reasonable steps to prevent any bullying or harassment in the workplace, for example, verbal abuse directed at vegans, or even anti-vaxxers, this could result in the employer having to defend a costly and time-consuming employment tribunal claim.
How can the risk of workplace discrimination be reduced?
Discrimination in the workplace can have very serious consequences for a business, from an employer’s exposure to legal proceedings to a damaged reputation and employer brand. It can also foster a negative working environment, with reduced morale, increased absenteeism and high staff turnover rates. It’s therefore crucial to ensure that your workplace culture is actively inclusive, cultivating a community of mutual respect through policies and behaviours.
A ‘dignity at work’ policy is often an ideal starting point when it comes to reducing the risks of workplace discrimination. This should set out the stance taken by your organisation in relation to discrimination, harassment and victimisation. The policy should also explain the different types of discrimination, including discrimination on the basis of philosophical beliefs. In this way, you can let your staff know what’s expected of them in the workplace, and give them guidance on the procedure for lodging complaints around discriminatory conduct.
Workplace discrimination training should also be rolled out across your entire workforce. This is because it’s not only important for all members of staff to fully understand the impact and consequences of their own discriminatory conduct, but for those responsible for making management decisions to be adequately trained in these areas of risk.
The question of philosophical beliefs is an especially complex area of employment law, and line managers and HR personnel must always exercise caution when handling situations concerning the beliefs that staff hold, even if these beliefs are not personally shared.
DavidsonMorris’ employment lawyers can help with all aspects of workplace discrimination. Working closely with our specialists in HR, we can advise on positive steps to improve diversity and equality in your organisation, while minimising the legal risk of discrimination claims. For help and advice, speak to our experts.
Philosophical Belief & Workplace Discrimination FAQs
What are the 4 characteristics of philosophical beliefs?
A philosophical belief must be a strongly and genuinely held belief, rather than an opinion or viewpoint, concerning an important aspect of human life, and worthy of respect.
What are protected philosophical beliefs?
Protected philosophical beliefs are beliefs which are genuinely held and affect how a person lives their life including, for example, humanism, atheism and spiritualism. It can even include a belief in things like ethical veganism or stoicism.
Are philosophical beliefs a protected characteristic?
A philosophical belief can amount to a protected characteristic, provided it meets the five criteria set out in caselaw guidance. These are known as the Grainger criteria.
What are different religious beliefs?
Under the Equality Act 2010, religion can refer to an organised religion, such as Islam or Christianity, or to a specific denomination or sect within a religion, like Sunnis within Islam. It can also refer to religious sects, like Rastafarianism.
Last updated: 27 May 2023