Something to be-leave in? Brexit as a philosophical belief

Introduction
Legal test
Recent case law
How does this apply to Brexit?
Leave or remain as a belief?

Introduction

In the face of undoubtedly strong feelings on both sides of the Brexit debate, questions are likely to arise regarding the implications of employees bringing their Brexit views into the workplace. Specifically, are there potential discrimination risks and could a strong belief regarding Brexit count as a philosophical belief for the purposes of the Equality Act 2010?

Legal test

UK law protects those who hold religious or philosophical beliefs from workplace discrimination. Philosophical beliefs have the same level of protection as religious beliefs, but not all beliefs qualify as philosophical.

In Grainger plc v Nicholson,(1) the legal test for a philosophical belief was set out by the Employment Appeal Tribunal (EAT) as follows:

• The belief must be genuinely held.
• It must be a belief, not an opinion or viewpoint based on the present state of information available.
• It must relate 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 "have a similar status or cogency to a religious belief" but need not "allude to a fully-fledged system of thought". In other words, it does not need to be an "-ism".
• It must be worthy of respect in a democratic society, be compatible with human dignity and not conflict with the fundamental rights of others.

The belief need not be shared by others. Membership of a political party is not covered, but belief in the political philosophy behind that party may be.

Recent case law

The courts have heard many recent cases discussing differing beliefs and whether they might qualify as philosophical so as to obtain protection against discrimination:

• In Conisbee v Crossley Farms Ltd, an employment tribunal found that vegetarianism was neither sufficiently cogent nor related to human life to be a philosophical belief (although it suggested that veganism may be covered).
• In Olivier v Department of Work and Pensions, an employment tribunal decided that a belief in the democratic socialist values of the Labour Party amounted to a philosophical belief.
• In Gray v Mulberry Company (Design) Ltd, the Court of Appeal rejected an employee's argument that her belief in the right to own the copyright and moral rights of her own creative works and output amounted to a philosophical belief.

A particularly interesting recent case is McEleny v Ministry of Defence, in which an employment tribunal in Scotland found that an individual's belief in Scottish independence could amount to a philosophical belief. The claimant, Mr McEleny, worked as an electrician for the Ministry of Defence and in his spare time represented the Scottish National Party (SNP) as an elected councillor. He was exceptionally politically active, with most of his free time taken up by SNP activity, including running twice for deputy leader of the party. He was dismissed from his role and brought a claim arguing that his beliefs in the democratic socialist values of the SNP and in Scottish independence should entitle him to protection against discrimination.

The employment tribunal found that although McEleny's subscription to the democratic socialist values of the SNP were not protected, his belief in Scottish independence was. It described his belief in independence and the reinstatement of Scottish sovereignty as unshakeable. The employment tribunal found that, in the unlikely event that the SNP decided to no longer support independence, McEleny's political affiliations would change. He supported the SNP because of its policy on independence; this was therefore a manifestation of that belief, rather than the other way around.

The employment tribunal agreed with the claimant that:

• the self-determination of people related to a weighty and substantial aspect of human behaviour;
• the question of how a country should be governed is a serious question; and
• this was a cogent belief that was capable of being understood (although others might disagree with it).

How does this apply to Brexit?

Obvious comparisons can be drawn between the approach in McEleney and Brexit. In some cases, an employment tribunal could conceivably find a person's belief regarding Brexit to be philosophical and thus capable of protection under the Equality Act:

• The belief would likely be regarded as genuinely held if the individual consistently argued against the European Union for a long period.
• It would be unlikely to matter if the person's position on the model of relationship had changed over time, provided that their core belief in exiting the European Union and repatriating sovereignty was consistently held throughout.

If an individual's support of Brexit is capable of amounting to a philosophical belief then, arguably, so too is the belief of an ardent remainer.

Leave or remain as a belief?

The test set out by the EAT in Grainger v Nicholson requires employment tribunals to be arbiters of belief. It requires them to determine which sets of belief should benefit from legal protection from discrimination and which should not.

Yet, beliefs are idiosyncratic and variable. One employment tribunal might determine that an individual's belief for or against Brexit is covered, while another may reach an opposite decision in an ostensibly similar case. The specific evidence and set of facts in each case will be vital, particularly regarding the following elements of the test:

• A philosophical belief must actually be a belief, not merely an opinion. In practical terms, this means that those with more rigid mindsets are most likely to be protected. It also means that political viewpoints are not covered and something more is needed (eg, a wider underlying belief encompassing topics such as sovereignty, self-determination and governance).
• The belief must permeate many aspects of a person's life, which suggests that it would not be enough simply to support and vote to leave or remain in the European Union. Rather, this would need to be combined with other activities (eg, taking part in protest marches, donating to campaigns, being active on social media or being an active canvasser).

In conclusion, a vote to remain or leave will not result in protection by itself, nor will a political viewpoint on whether the United Kingdom is better off in or out of the European Union. The question is whether such a vote or viewpoint is the manifestation of a wider underlying philosophical belief. Different employment tribunals could come to different conclusions on this issue, depending on the specific circumstances of the case.

For further information on this topic please contact James Davies or Tom Heys at Lewis Silkin by telephone (+44 20 7074 8000) or email (james.davies@lewissilkin.com or tom.heys@lewissilkin.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.

Endnotes

(1) See also the explanatory notes to the Equality Act, at Paragraph 52.