23 October 2019

Political opinion or philosophical belief?

An Employment Tribunal has confirmed that a belief in Scottish independence can amount to a “philosophical” belief for the purpose of protection from discrimination under the Equality Act 2010 (the Act).

 

How does the Act treat politics and philosophy?

 

The Act makes it unlawful to discriminate against employees because of their religion or beliefs, but there is no protection in UK law from discrimination based on political opinion. As a result, employees who feel they have been treated unfairly as a result of their political ideology have sought to argue that their political opinion amounts to a “philosophical belief” under the Act.

 

What amounts to a philosophical belief?

 

For a belief to amount to a philosophical belief, case law has determined that it must:

• be genuinely held
• be a belief and not an opinion or viewpoint
• relate to a weighty and substantial aspect of human life and behaviour
• attain a certain level of cogency, seriousness, cohesion and importance
• be worthy of respect in a democratic society and not be incompatible with human dignity, or conflict with the fundamental rights of others.

In the recent case of McEleny v Ministry of Defence, the tribunal considered whether Mr McEleny’s belief in Scottish independence could amount to a “philosophical” belief.

Mr McEleny, an electrician, worked for the Ministry of Defence (MOD) in Ayrshire. Since childhood, he had maintained a deeply held belief in Scottish independence. In 2016, he announced his candidacy for the Scottish National Party deputy leadership election. Mr McEleny asserted that, following this announcement, his security clearance was revoked, and he was questioned by the MOD about his mental health. In particular, he was asked for his views on Trident, Irish politics and Rangers Football Club.

Mr McEleny’s security clearance was later reinstated, but he chose to resign from his post and brought a claim against the MOD for constructive unfair dismissal and direct discrimination as a result of his belief in Scottish independence.

The MOD were of the view that a belief in Scottish independence was merely a political opinion and not protected under the Act.

At the preliminary hearing, the tribunal considered whether this belief amounted to a “philosophical” belief under the Act.

Applying the test above, the tribunal found that his belief did amount to a philosophical belief. This is because it was genuinely held, not an opinion, related to a weighty and substantial aspect of life, had a level of cogency and was a belief worthy of respect in democratic society.

This decision was appealed by the MOD but subsequently upheld by a different tribunal. The matter will now continue to a full hearing to assess whether the MOD’s treatment of Mr McEleny was, in fact, discriminatory.

 

How does this affect schools?

 

Whilst the facts of this case are somewhat specific, it emphasises the fact that political opinions may be capable of being considered a philosophical belief, and may therefore amount to a protected characteristic. Schools should be mindful of this when dealing with staff.

With Brexit on the horizon, there may be employees with passionate opinions on whether to remain in, or to leave, the EU. If an employee believes they have been treated less favourably as a result of their particular stance on Brexit, they may, following this judgment, look to bring a discrimination claim.

If in doubt, schools should seek advice on the matter.

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About the Author
Emma Glazzard, Solicitor

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