Employment Law Cases

December 2009

Religion and Belief

This month we highlight a recent case dealing with the Employment Equality (Religion or Belief) Regulations 2003 (“the Regulations”). 

Regular readers may remember that, back in April, we covered the case of Nicholson v Grainger Plc in which the Employment Tribunal decided that Mr Nicholson’s strength of feeling about the state of the environment, and the need to act in order to save the planet, amounted to a philosophical belief which should enjoy protection under the Regulations. 

Grainger Plc’s appeal against this decision was recently heard by the Employment Appeal Tribunal (“the EAT”), which also sided with Mr Nicholson. 

Grainger Plc had argued that Mr Nicholson’s views on climate change and the need to cut carbon emissions could not amount to a philosophical belief because they were based on fact and science, not religious faith. 

The EAT saw no reason why a person holding a philosophical belief based on science was any different to a philosophical belief based on religion.  The Tribunal used the analogy of Creationism and Darwinism, both of which the EAT thought would be capable of protection under the Regulations.

On that basis, the EAT felt that Mr Nicholson’s beliefs could qualify for protection but went on to set guidelines for individuals wishing to establish that their beliefs were more than just an opinion or viewpoint.  The EAT specified that the belief must: be genuinely held; relate to a weighty and substantial aspect of human life and behaviour; attain a certain level of cogency, seriousness, cohesion and importance; be worthy of respect in a democratic society.

However, there was one area in which the EAT disagreed with the Tribunal.  The EAT did not believe that Mr Nicholson’s beliefs had to be accepted at face value.  Instead, the EAT felt that he should be cross-examined so as to establish whether the beliefs he espoused were genuinely held.  The EAT went on to suggest that, establishing commitment to a philosophical belief may be slightly more difficult than establishing belief on the grounds of religious faith, which will often require no more than showing active practicing of the religious faith in question.

Someone who has already taken advantage of this new guidance is Mr Power, who recently brought proceedings against Greater Manchester Police for unfair dismissal, claiming that he had been dismissed for believing that mediums should be consulted in criminal investigation.  As in Mr Nicholson’s case, the Employment Tribunal decided that Mr Powers’ beliefs were worthy of respect in a democratic society and that his strength of feeling was sufficient to be covered by the Regulations.  Although the Tribunal in Mr Powers’ case went on to decide that Mr Power’s beliefs were not the main reason for his dismissal, the case does show the extended impact of the Regulations following the Nicholson case.

Associative Discrimination

Another case that we have covered before is that of Coleman v Attridge Law.  Back in October 2008, we reported that the European Court of Justice (“the ECJ”) had given judgment in favour of Mrs Coleman, who had argued that she should be protected under disability legislation, even though she herself was not disabled.

The Disability Discrimination Act 1995 (“the DDA”) does not, on the face of it, protect non-disabled individuals from discrimination or harassment.  However, Mrs Coleman alleged that she had been treated less favourably than other members of staff because of her association with her disabled son.

Mrs Coleman’s claims against her former employer were that, after she returned from maternity leave, she was unable to return to the post that she had previously held and that, when she asked to be considered for flexible working in order to look after her son, her request was refused while similar requests by parents of non-disabled children had been granted.  Mrs Coleman also made allegations of abuse and harassment. 

None of these claims have been tested in the Employment Tribunal and, although the litigation has been ongoing for some time, the litigation to date has been focused on preliminary issues.  The latest question is whether the DDA could be read in such a way so as to include the claim of associative discrimination established by the ECJ.  The Employment Tribunal had already decided that it could.

Based on previous decisions, the EAT held that there was nothing to stop them from adding words into the DDA so as to cover associative discrimination, even if that changed the meaning of the Act itself.  In the EAT’s view, the real question was whether or not the new meaning (which would be given to the Act by the insertion of those words) was compatible with the underlying aims of the Act.  The EAT pointed out that associative discrimination is already covered in other anti-discrimination legislation and so could find no reason why associative discrimination could not fit within the aims of the DDA.

On this basis, the EAT held that, where there has been adverse treatment on the grounds of disability, the fact that the disability is not the victim’s own is irrelevant despite the fact that the DDA does not specifically mention this.  In future, therefore, an act of unlawful discrimination will have occurred if a person treats an employee less favourably than he would treat or treats another person by reason of that person’s disability or by reason of the disability of another person.

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