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Tuesday, 01 December 2009 12:30 |
As if the increasing amount of discrimination legislation over the years hasn’t been enough for employers to contend with, the recent EAT ruling in the case of Nicholson v Grainger has confirmed the extension of the scope of what constitutes a ‘philosophical belief’ for the purposes of The Employment Equality (Religion or Belief) Regulations 2003, receiving much media attention. Whatever your personal opinion on the ruling, the fact remains that the goalposts have now shifted significantly so we thought we’d take the opportunity in this email update to look at the implications for employers.
The EAT ruled that a belief in climate change and its consequences are capable of being a ‘philosophical belief’. Likewise, whilst it was specifically stated that it does not automatically follow, an absence of such a belief, i.e. that man is not causing climate change may also be treated as a philosophical belief. It seems that the regulations would recognise beliefs ranging from vegetarianism to science-based Darwinism to political philosophies such as Marxism as a ‘philosophical belief’ and no doubt you will be wondering if this extends to your resident Jedi employee! But rest assured, the EAT did address this and set out some guidelines for whether an asserted ‘philosophical belief’ would qualify under the legislation, as follows:
- The belief must be genuinely held.
- It must be a belief and not an opinion or viewpoint based on the current information available.
- It must be a belief as to a weighty and substantial aspect of human life and behaviour.
- It must attain a certain level of cogency, seriousness, cohesion and importance.
- It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.
For those of you querying whether the ruling is a passport for all sorts of radical beliefs to come out of the woodwork and be protected, point 5 appears to be the ‘get out’ clause for ensuring that radical, racist or homophobic philosophies will not be protected under the legislation, but watch this space as no doubt this will be tested somewhere along the line… For the time being at least, all that is required is to work out if an alleged belief meets the above criteria… simple?!
So what are the implications for employers? Will this be the next stalling tactic used by employees facing disciplinary action or redundancy selection we ask ourselves? Putting our Mystic Meg hats on, we predict an inevitable rise in related grievances and tribunal claims as we foresee the ruling leading to an influx of employees jumping on the bandwagon and declaring their fundamental beliefs, particularly if they can find no protection under other areas of legislation in response to the action taken by their employer. Company time will be spent determining whether the individual’s objection first relates to their belief and if so whether this belief meets the criteria (we can hear the groans) before the actual issue is actually addressed - and that’s even before defending a tribunal claim to find out if the belief does in fact meet the criteria!
However, you may wish to take comfort from the fact that a tribunal found in the last week that a police employee, who alleged he was sacked for believing that psychics could solve crimes, was not discriminated against despite his belief being protected under the Regulations. Indeed, it still remains for a tribunal to decide if Nicholson was unfairly dismissed for the reason of his belief so here are a few suggestions to ensure you do not fall foul of the legislation and are not the next ‘victim’ of testing the scope even further….
Fair and transparent policies and procedures: Review or develop clear guidance and policies covering redundancy selection, disciplinary action, etc.
Equal opportunities and diversity policies and training: Make sure you have a comprehensive policy which details the Company’s expectations and what behaviour will constitute disciplinary action and ensure all employees are aware of this through training!
Management training: Ensure managers are confident addressing any concerns, are aware of what the legislation means and what their responsibilities are.
If you would like to talk to one of our consultants about reviewing your policies and procedures, training your employees or require general HR advice about a related matter, please do not hesitate to get in touch with us on 0207 152 4090 / 01425 479888 / 01189 349845 or contact us .
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