Veitch Penny LLP - Exeter | Crediton, Devon

Case

Nicholson v Grainger Plc
Employment Appeal Tribunal – 3 November 2009

Issues

(1) Employment Equality (Religion or Belief) Regulations 2003 (“the Regulations”)
(2) Whistleblowing
(3) Public Interest Disclosure Act 1998

Facts

This case has previously been reported in these Updates at the tribunal stage.

Mr Nicholson had been employed by the company as head of sustainability. Grainger Plc was a property investment company.

He was dismissed on 31 July 2008. As he did not have sufficient continuity of service to bring a standard unfair dismissal claim, he was limited to bringing a claim under the discrimination legislation or the “whistleblowing” legislation (the Public Interest Disclosure Act 1998).

After he was dismissed, he sent an e-mail to his employer stating that he considered his dismissal to be automatically unfair on the grounds that he had made a protective disclosure (which, if established, meant that twelve months’ continuity of service was not needed). Furthermore, he said that in his view the manner in which his employment was terminated constituted discrimination on the grounds of his philosophical beliefs in breach of the Regulations.

At a pre-hearing review, the Tribunal had to consider whether his views were capable of constituting a “philosophical belief” as defined by the Regulations.

Mr Nicholson argued that his beliefs relating to climate change and the need to cut carbon emissions were more than an opinion. He submitted that his beliefs affected how he lived his life. He said they were “… not merely an opinion but a philosophical belief which affects how I live my life including my choice of home, how I travel, what I buy, what I eat and drink, what I do with my waste and my hopes and my fears.”

In giving its judgment the Tribunal Judge stated that his views commanded “the highest respect in democratic societies as can be seen from the conduct of modern global politics". It was concluded that Mr Nicholson’s views were capable of constituting a philosophical belief for the purposes of the Regulations and were more than just an opinion.

The employer appealed the decision to the Employment Appeal Tribunal (EAT), which had to consider (i) how far, if at all, the belief said to qualify for protection was required to be similar to religious belief; (ii) what limits, if any, should be placed on the words “philosophical belief”; and (iii) whether the authorities in relation to the European Convention on Human Rights were of relevance. In its submissions, the employer agreed that the philosophical belief should be similar to religious belief, forming part of a system of beliefs, and should be based on a philosophy of life rather than a scientific or political belief.

Decision

The EAT considered the previous case law including the case of McClintock –v- the Department for Constitutional Affairs. In reviewing the case law it noted certain limitations had been placed on the definition of “philosophical belief”: the belief must be genuinely held; it must be a belief and not an opinion or viewpoint based on the present state of information available; it must be a belief as to a weighty and substantial aspect of human life behaviour; it must attain a certain level of cogency, seriousness, cohesion and importance; and it must be worthy of respect to the democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. It was necessary for such a belief to have similar status or cogency to a religious belief but noted that even a religious belief was not one that was not required to be shared by others. As a result, simply because the belief was a one-off was not a bar to protection and it did not need to constitute a fully-fledged system or thought.

The EAT noted that the previous judge had reached the conclusion that Mr Nicholson’s belief amounted to a philosophical belief without cross-examination. As a result, the decision of the Tribunal would be upheld, namely that Mr Nicholson’s beliefs were capable of being a belief for the purposes of the Regulations and also directed that at any full hearing Mr Nicholson would need to be cross-examined as to the genuineness of his belief. He would also need to produce evidence from which the Tribunal could conclude that his dismissal was on the basis of that belief.

Comments

This case is likely to lead to more claims from employees as it is inevitably going to be difficult for employers to determine what may or may not constitute a belief entitled to protection. More usefully however, the case provides useful guidance as to how two competing sets of rights are to be handled.