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18 December 2019
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?
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.
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.
The courts have heard many recent cases discussing differing beliefs and whether they might qualify as philosophical so as to obtain protection against discrimination:
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:
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:
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.
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:
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 (email@example.com or firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) See also the explanatory notes to the Equality Act, at Paragraph 52.
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