Veitch Penny LLP - Exeter | Crediton, Devon

Case

Maistry –v- The BBC
Employment Tribunal

Issues

(1) Employment Equality (Religion or Belief) Regulations 2003 (“the Regulations”)
(2) Philosophical belief
(3) Tribunal guidelines

Facts

We have previously reported on the case of Nicholson –v- Grainger Plc [2009] at which Mr Nicholson succeeded in a pre-hearing review in establishing that his belief in climate change and the need to cut carbon emissions was capable of constituting a philosophical belief. The Regulations, now incorporated in the Equality Act 2010, provide protection from discrimination on the grounds of “religion, religious belief or similar philosophical belief (or indeed, the absence of belief)”.

The Nicholson case identified five criteria or guidelines for Tribunals to consider when considering a philosophical belief.

1. The belief must be genuinely held.
2. There must be a belief and not an opinion or viewpoint, based on the evidence available.
3. It must be a belief with a weighty and substantial aspect of human life and behaviour.
4. It must attain a certain level of cogency, seriousness, cohesion and importance.
5. It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

Two subsequent cases have looked at the scope of the definition in more detail.


In Maistry, a BBC employee claimed that he had been unfairly dismissed and discriminated against on the grounds of age and/or philosophical belief. He argued that his belief that public service broadcasting had the “higher purpose of promoting cultural interchange and social cohesion”.

A pre-hearing review was held to determine whether or not his belief fulfilled the definition as set out in the Regulations. He submitted that the organisation had a clear statement of purpose, relying on statements from Lord Reith (first Director General) and Mark Thompson regarding the purposes of public service broadcasting to “foster a reasoning citizenry”, “support the development of an inclusive, participatory and enlightened democracy”. Maistry also put forward evidence regarding his work as a student leader, trade unionist and journalist in South Africa in the protest against apartheid. The BBC accepted the strength of his opinion but denied that those opinions constituted a philosophical belief.

In Hashman, Mr Hashman argued that he had been discriminated against when his pro-hunting bosses discovered that he was a leading animal rights activist. His covert video footage had helped to conflict Clarissa Dickson-Wright of attending an illegal hare coursing event. Feelings had been running high at the Centre and he was sacked the day after she had been convicted. The employer alleged that he had been dismissed because of the poor quality of his work. Hashman argued that his anti-hunting beliefs constituted a philosophical belief, and that he was dismissed because his employer was pro-hunting and had discovered his opposition to it.

Decision

Maistry was successful in his argument that his beliefs were more than just an opinion. The five steps set down in Nicholson were applied, and the following findings made:

1. It was clear that Maistry had a genuine and strongly held belief.
2. Based on the evidence, his views constituted a belief rather than an opinion. Whilst a belief does not have to be shared, there was evidence to show his belief was embraced by philosophers and academics.
3. The belief related to a weighty and substantial aspect of human life.
4. The belief had attained a certain level of cogency, seriousness, cohesion and importance. It was not accepted that the views were political rather than philosophical.
5. The BBC had accepted that the belief was worthy of respect in a democratic society. It was not incompatible with human dignity and it did not conflict with the fundamental rights of others.

Furthermore, in Hashman the Tribunal agreed that his particular beliefs could constitute a philosophical belief under the Regulations. The Employment Judge hearing the case said that Hashman had a belief in the sanctity of life extending to his fervent anti-hunting beliefs. Evidence was heard that he lived his life according to those beliefs. The Tribunal made clear that whilst Hashman met the Nicholson criteria, it did not mean that everyone opposed to fox hunting would be similarly protected.

Comments

Whilst these cases are both at Tribunal level, they give a useful indication of how Tribunals are approaching this issue and the Nicholson tests and how wide their scope can be. Maistry in particular is likely to be of concern to voluntary organisations and charities where employees are likely to have a personal commitment to the objectives of the organisation.