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Nicholson v Grainger plc - It's not easy being green

By Nick Hobden, Partner and Head of Employment.

As we all know, since the rolling out of the Employment Equality (Religion or Belief) Regulations 2003, it has been unlawful to discriminate (directly or indirectly) against employees or job applicants on the grounds of their religion or some other philosophical belief.

Whilst it is unsurprising that people have sought to pursue claims on the grounds that they are, for example, Christian, Jewish or Muslim, what has been interesting is to see how broadly the Employment Tribunal ("ET") has been prepared to construe the definition of "philosophical belief". To date, the most interesting cases have focused on the question of whether membership of and a belief in the aims of the British National Party might be protected under the regulations; the case law to date is not entirely clear. But the recent case of Nicholson v Grainger plc, has wrestled with the question of whether an employee's belief in global warming might be capable of protection.

Mr Nicholson was employed by Grainger PLC as Head of Sustainability until he was dismissed by reason of redundancy. Mr Nicholson believed that the real reason for his dismissal was not redundancy but, amongst other things, his belief in climate change. As part of his case, and to show how deeply held his beliefs are, Mr Nicholson emphasised the fact that his views on climate change influenced his choice of home, how he travels and what he eats.

Previous case law has suggested that for a belief to qualify for protection, it must have sufficient cogency, seriousness, cohesion and importance, in addition to being worthy of respect in a civilised society. The ET considered whether the employee's strongly-held beliefs fell within the scope of the regulations and found in favour of Mr Nicholson. Particular weight was given to the fact that Mr Nicholson's beliefs gave rise to a moral order similar to those derived from the major world religions.

This is only an ET decision and it is likely to be appealed. But if upheld, it starts to give us some understanding of the types of cases in which someone may be able to bring a claim under the regulations. The bar is set quite high. But if the beliefs are dearly held and impact upon the way in which someone lives their life, they may be capable of protection. Watch this space!