Claimant’s belief in English Nationalism not a protected belief

A recent decision in the Employment Appeal Tribunal of Mr S Thomas v 1) Surrey and Borders Partnership NHS Foundation Trust 2) Ms A Brett has confirmed that English nationalism, is not a belief that can give rise to claims under the Equality Act 2010. 

By way of background, and as many will already know, section 10 of the Equality Act 2010 establishes “religion or belief” as a protected characteristic. Belief can mean religious or philosophical belief and also extends to lack of belief. The essence of this protection is that an individual cannot be discriminated, harassed, or victimised, because of a genuinely held belief. 

The case of Grainger plc and others v Nicholson [2010] IRLR 4 helped to set out the criteria for establishing whether a religion or belief qualifies for protection under the Equality Act 2010, namely:

  1. The belief must be genuinely held.
  2. It must be a belief, not an opinion or viewpoint based on the present state of information available.
  3. It must be a belief as to a weighty and substantial aspect of human life and behaviour.
  4. It must attain a certain level of cogency, seriousness, cohesion and importance.
  5. It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

Point 5 “ It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others”, must be considered in light of Article 17 of the Human Rights Act 1998. This means that a protected belief cannot be aimed at the destruction of another person’s rights and freedoms. As such, as was the case here, a belief that had particular focus on anti-Islamic views was not one worth of respect in a democratic society. The claim therefore failed.

This decision is one that helps to further establish the key concepts set out under the Equality Act 2010 ensuring that hateful and destructive views have no protection. The balancing of Human Rights has been an issue since the concept’s earliest inception (post WW2). We will often see headlines which complain of the erosion of free speech and that this “right” is somehow immovable. It is not. It, like many rights protected under Human Rights legislation can be limited and refined to ensure that the rights of all are ultimately balanced and protected (the exceptions being the non-derogable rights such as the right to life, freedom from torture, slavery and retroactive penal laws). This recent EAT decision serves as an important reminder that beliefs, even those which are shocking, or controversial, can still be protected provided they meet the requirements of The Grainger Test. Those views which promote hate and violence will not be protected.  This ultimately upholds the spirit and essence of the Equality Act and the Human Rights Act.

How Moore Barlow can help

Each case will, of course, turn on its own merit and, as with the case here, require careful scrutiny of each circumstance to get to the root of each matter. The Employment Team at Moore Barlow is very experienced in such Employment Tribunal litigation and can assist with any matter that arises in the course of Employment or upon termination.