When the Employment Equality (Religion or Belief) Regulations 2003 were first introduced, employees were protected from discrimination by reason of any ‘religion, religious belief or similar philosophical belief’. The wording was changed in 2007, with the word ‘similar’ being removed so that the Regulations covered ‘any religion, religious or philosophical belief’. This wording has been retained in the Equality Act 2010, which replaced the 2003 Regulations in October 2010.
In Grainger plc v Nicholson
, the Employment Appeal Tribunal identified the criteria which must be satisfied for a belief to be a philosophical belief under the 2003 Regulations. Relying on this test, the Employment Tribunal has held (Maistry v BBC) that the belief of a BBC employee that ‘public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion’ falls within the definition of a philosophical belief.
Mr Maistry claimed that he had been unfairly dismissed and discriminated against on the grounds of age and/or philosophical belief. A Pre-Hearing Review was held to determine whether or not his belief constituted a philosophical belief such as to entitle him to protection under the 2003 Regulations. Mr Maistry argued that the BBC is a public funded body with a clear statement of purpose. He relied on statements made by Lord Reith, the first director general of the BBC, and by Mark Thompson, the present director general, regarding the purpose of public broadcasting, which is to ‘foster a reasoning citizenry’, to ‘support the development of an inclusive, participatory and enlightened democracy’ and to provide a ‘public space’, in which people can encounter culture, education and debate and share experiences, that is neither part of the Government nor the State nor purely governed by commercial considerations. He gave evidence of comment on this purpose by philosophers and academics.
As regards the strength of his belief, Mr Maistry had been a student leader, trade unionist and journalist in South Africa during the struggle against apartheid. He was banned from studying at university in South Africa after he took part in the black student boycotts of 1972. He was forced to flee South Africa for a second time in 1987 after his news reports to international agencies led to security police raids on the Press Trust of South Africa News Agency.
The BBC accepted that Mr Maistry’s belief was worthy of respect in a democratic society, but maintained that it was in reality an opinion, not a philosophical belief for the purposes of the 2003 Regulations.
The ET applied the 5-step test set out in Grainger v Nicholson and found that:
- There was no reason to doubt that Mr Maistry had a genuine and strongly held belief;
- Mr Maistry’s views constituted a belief, rather than an opinion based on the present state of information available. Whilst a belief does not have to be shared, there was evidence that his belief was embraced by academics and philosophers;
- The belief clearly related to a weighty and substantial aspect of human life and behaviour and there was nothing in the 2003 Regulations nor in Grainger v Nicholson to prevent the public aims of an organisation amounting to a philosophical belief if those aims were the result of an underlying philosophical belief;
- The belief had attained a certain level of cogency, seriousness, cohesion and importance. The ET did not accept the BBC’s contention that it was a political opinion or based on a political philosophy and, in any case, Burton J in Grainger v Nicholson could see no reason why a political philosophical belief could not qualify; and
- The BBC had accepted that the belief was worthy of respect in a democratic society. Nor was it incompatible with human dignity and it did not conflict with the fundamental rights of others.
The ET refuted any suggestion that its decision would ‘open the floodgates’ so that Tribunals would find themselves inundated by claims from employees on the ground that they have been discriminated against for having a strongly held belief in the mission statement of their public or private sector employer. Any belief must fall to be tested on the individual facts in each case. Furthermore, even when it has been established that an individual’s belief does constitute a philosophical belief, the claimant
still has to prove that he or she has suffered less favourable treatment and, if so, that this was on account of that belief.
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