Nicholson v Grainger plc - the next instalment

01/01/2010

By Nick Hobden, Partner and Head of Employment.

In the case of Nicholson v Grainger plc, Mr Nicholson had brought a claim under the Employment Equality (Religion or Belief) Regulations 2003 (the "Regulations"), arguing that he had been dismissed by Grainger plc because of his belief in climate change.

Mr Grainger stated that his chief executive showed a "contempt" for his concerns, citing one occasion when he flew a member of staff to Ireland to deliver his BlackBerry which he had left in London! The company argued that Mr Grainger had simply been made redundant.

The Regulations state that employers must not discriminate against employees on the grounds of their religion or some other philosophical belief. The Employment Tribunal ("ET") decided that Mr Nicholson's strongly held belief in climate change was a "philosophical belief" and therefore fell within the protection of the Regulations.

Mr Nicholson's Appeal

As we predicted in our previous article on this case, Grainger plc decided to appeal the ET's decision. In making its decision, and effectively agreeing with the ET, the Employment Appeal Tribunal ("EAT") offered guidance as to what can constitute a philosophical belief. It said that the belief must be genuinely held and relate to a weighty and substantial aspect of human life and behaviour. The belief must have a certain level of cogency, seriousness, cohesion and importance and must be worthy of respect in a democratic society. The belief must not simply be an opinion or viewpoint, nor may it conflict with the fundamental rights of others. The EAT also said that to simply assert that the belief is a philosophical belief within the Regulations is not sufficient; the claimant's belief must be established, and he may be cross examined on the matter in order to decide the extent to which he holds that belief.

The thin end of the wedge?

As is often the case in the aftermath of such decisions, there are now worries that this ruling will open the floodgates to claims asserting that all sorts of beliefs are protected under the Regulations. Bearing this in mind, one particularly interesting development relates to the case of Mr Power, a police worker with Greater Manchester Police. Having commenced proceedings against his employers, he was recently told by an ET that he can continue with his claim under the Regulations in relation to his belief in psychics, life after death and the suggestion that mediums can contact the dead! This sort of decision may do little to allay people's fears over the potential impact of this legislation. But it is of course worth bearing in mind that whilst Mr Nicholson and Mr Power have been given permission to bring claims under the Regulations, this does not mean that those claims are bound to succeed. They will still need to prove that they were directly or indirectly discriminated against because of their beliefs.

Furthermore the EAT has, through the Nicholson case, imposed some significant limitations on what can fall within the protection of the Regulations. For example the Regulations do not give an employee the right to impose his beliefs on others. Similarly, a belief in certain objectionable philosophies (such as racism) will not fall within the Regulations. It has been acknowledged that such opinions, which are likely to be regarded as unworthy of respect in a democratic society and which conflict with the fundamental rights of others, cannot be protected. It the light of previous cases on the issue, it will be interesting to see what effect these decisions might have on situations in which members of the British National Party attempt to assert the right to protection under the Regulations.