There have been two recent employment tribunal decisions that appear to open the floodgates for employees under provisions now contained in the Equality Act 2010 which prohibit discrimination on grounds of religion or belief ("the Act"). These cases appear to extend the protection to what are effectively fervently held beliefs. In Hashman v Milton Park (Dorset) Limited an anti fox hunting belief was held to be capable of protection under the Act. More bizarrely, in Maistry v the BBC, a belief in the higher purpose of public service broadcasting, yes you have not misread that, was also found to be capable of being protected by the Act. These decisions do need careful analysis, otherwise the only logical conclusion to reach is that tribunals have lost touch with reality.
Can it really be the case that a moral or lifestyle choice is capable of being covered by the Act, simply because someone has a fervent belief in it?
In 2010, the EAT, in the case of Grainger Plc & Others v Nicholson, gave guidance as to the types of "belief" protected. Whilst the publicity in the Hashman case concentrated on anti fox hunting beliefs, closer examination of the case shows that the tribunal clearly accepted that Mr Hashman had a belief in the sanctity of life and that could qualify as a philosophical belief. This decision does therefore have some legal force to it, although many would argue it does open the floodgates for any animal rights activist to be covered by the legislation. The Maistry decision, however, appears to have no dependable legal basis. On reading the decision, it appears that the Employment Judge was influenced by the strength of the Claimant's feelings.
If the strength of a Claimant's feelings are going to be the important test for an employment tribunal, then all employers are going to be facing a rocky road. I myself have a sad, but fervent, belief in Watford Football Club. Football is a "religion" to many fans. Can they now all be protected from being discriminated against?
It cannot be right that legislation designed to protect people with religious and analogous philosophical beliefs now covers issues which are mere opinions or viewpoints. What is becoming clear is that employment tribunals are using the Nicholson guidelines, to widen what amounts to a "philosophical belief". Until a higher court offers further clarity, employers must begin to ask themselves when dealing with their employees, whether employees do hold fervent beliefs which they will then seek to connect to the reason for their treatment. It also serves to reinforce the point that employers must focus on taking decisions based on standards of performance and conduct, rather than the views, personality or other traits of the employee. This is clearly an unsatisfactory situation for all employers, but one they cannot currently ignore.
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