UK: Climate Change: A New Religion?

Last Updated: 16 October 2009
Article by Sophie Whitbread

In a recent Employment Tribunal hearing, Mr Nicholson claimed that his former employer, Grainger Plc, had not made him redundant as they asserted, but had actually dismissed him because of his belief in climate change.

What did the Tribunal decide?

The Tribunal Judge reached the conclusion that Mr Nicholson's belief in climate change was one that was protected by the Employment Equality (Religion or Belief) Regulations 2003. The Regulations were introduced in December 2003 to protect employees against discrimination on the grounds of their religious or similar philosophical beliefs. It was never quite clear what exactly would be classified as a "similar philosophical belief", but the Government's guidance was that such a belief would need to occupy a place in the person's life similar to that filled by the god or gods of a religion, and that a certain level of seriousness was required. It was envisaged that beliefs such as pantheism, atheism and humanism would be covered.

Very few cases made it to the Tribunal on this point, although in two cases, BNP membership was found not to be covered by the Regulations. In one of those cases, the Tribunal found that British Nationalism did not involve a clear belief system or affect in a profound way a person's life or view of the world.

The law changed slightly in 2007 when the requirement for a philosophical belief to be "similar" to a religious belief was removed from the Regulations. The argument from the Government was that this was simply redundant language and that the sense of the Regulations would not change, but it is inevitable that Tribunals will start to look at the Regulations and their interpretation differently, as illustrated by this case.

What was the Tribunal's reasoning?

The Employment Judge gave careful consideration to what amounts to a philosophical belief, noting that the wording of the Regulations had been influenced by the language of Human Rights. The Judge considered an Employment Appeal Tribunal case (McClintock v Department of Constitutional Affairs), in which an individual had tried (unsuccessfully) to bring a claim based on philosophical belief. The Employment Appeal Tribunal had decided in McClintock that, in order to be covered by the Regulations, a philosophical belief must have sufficient cogency, seriousness, cohesion and importance and be worthy of respect in a democratic society. The Claimant in McClintock failed to satisfy this test, as on the facts of that case his beliefs were mere opinions that were subject to change in the future.

Mr Nicholson, on the other hand, adduced evidence in the Employment Tribunal about the impact of his beliefs on his everyday life and explained how they affected where he lived, how he travelled, what he bought and what he ate and drank. The Employment Judge found no difficulty in agreeing that beliefs around the impact of climate change passed the test set out in McClintock. He noted that Mr Nicholson's beliefs gave rise to a similar moral order to that derived from world religions. He did, however, also point out that an opinion on one aspect of climate change would not be enough to amount to a philosophical benefit, so it is clear that an employee will need to demonstrate some level of similarity to a religion.

The Thin End of the Wedge?

It should be remembered that this Tribunal hearing was merely a preliminary hearing to decide whether Mr Nicholson was entitled to bring a claim of discrimination under the Regulations. Its purpose was not to decide whether that claim was ultimately successful. Having proved that he was protected by the legislation, Mr Nicholson would still need to go on to show that he had in fact been dismissed because of his belief in climate change. He would at that stage be in no better position than a Muslim or Christian who had alleged that their dismissal had been as a result of their religious belief. They would still need to show that that was in fact the case by adducing relevant evidence to support their claim, which the employer was unable to defend. In fact, the Employment Judge was very keen to stress that his judgment was not the thin end of the wedge.

Inevitably, however, employees will try to push the legislation as far as it will go and we can expect more cases to test this definition. It will be particularly interesting to see whether future cases concerning BNP membership are decided differently, given the now potentially wider definition of "philosophical belief".

What should Employers do?

This case shows that Employment Judges are looking carefully at the wording of the Regulations and interpreting them creatively. However, employers should remember first that the test of what amounts to a philosophical belief is a high one and will require evidence of serious and cogent beliefs from the employee. Secondly, an employee who is found to have a belief that is protected by the Regulations will still need to show that he or she has in fact been discriminated against.

Whilst employers cannot do anything about what employees believe, and have relatively little control over how the law develops in terms of whether those beliefs are protected by the Regulations, they can help to protect themselves against claims.

They should put in place policies and procedures that can be used as evidence at a Tribunal hearing if necessary to show that no discrimination took place. For example, employers should ensure that they have appropriate procedures in place for noting reasons for recruiting, promoting and dismissing employees so that it is clear that these decisions have been taken for fair and non-discriminatory reasons. They should also consider enhancing their diversity policies and training programmes to help to encourage a culture of inclusivity. In summary, employers would be well advised to take heed of this decision and protect themselves as outlined above as this area of law is bound to develop over the years, even though this decision itself is not technically binding on other Employment Tribunal Judges.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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