No matter what your employees believe, they need to be dealt with correctly – or you will face the legal consequences, explain lawyers Natasha Koshnitsky and Rob McCreath.
Picture the scene: the interview has gone well and the candidate has come across as well-qualified and suitable for the senior and highly sensitive vacancy. In the interviewers’ minds, the ink on the offer letter is as good as dry.
There is a final, almost throw-away question: “So, what do you get up to when you’re not at work?”
The candidate smiles radiantly. “Well, I spend most of my weekends socialising…” (the interviewers relax, visualising summer barbeques and cosy lunches in country pubs) “…amongst both the living and the dead. My partner and I are committed evangelical Zombists. We believe that the dead are always amongst us. Some of them have even been taking part in this interview.”
Slight pause. “Well, er, I think that pretty much wraps things up, unless you have any further questions for us. No? Fine. Thank you so much for coming in and we’ll be in,… er…, touch very soon.”
Sincerest smiles and hand-shakes all round. Audible relief as the door closes behind the candidate. Slight nervousness about who or what else might still be in the room.
Now, no doubt there are some jobs for which having (or not having) the beliefs that I have attributed to Zombists is neither here nor there. (By the way, Zombists are entirely fictional and any resemblance to any actual group (whether living or dead) is entirely coincidental.) But there are many senior jobs for which a belief that there are dead people taking an active part in Board meetings, for example, could be viewed as a distinct disadvantage. So surely the interviewers in this case would be justified in reversing their initial view and offering the job to another candidate?
Maybe. But recent decisions of the Employment Appeal Tribunal in Grainger PLC and Others v Nicholson [2009] UKEAT 0219_09_0311 (Nicholson) and Power v Great Manchester Police [2009] UKEAT 0434_09_1211 (Power) under the Employment Equality (Religion or Belief) Regulations 2003 could support arguments to the contrary. While neither Nicolson nor Power were Zombists, their cases do raise important questions for employers about where the line should be drawn on what is a philosophical belief qualifying for protection under the Religion or Belief Regulations.
Nicholson
Mr Tim Nicholson was head of sustainability at Newcastle-based Grainger plc. Grainger plc dismissed Mr Nicholson on the grounds of redundancy. Mr Nicholson subsequently claimed in the Employment Tribunal that he was discriminated against and dismissed due to his philosophical belief in climate change.
Mr Nicholson submitted the following evidence to the Employment Tribunal in support of his claim that his belief was more than mere concern for the environment: “I have a strongly held philosophical belief about climate change and the environment. I believe we must urgently cut carbon emissions to avoid catastrophic climate change. It is 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.”
The Tribunal found that Mr Nicholson had settled views about climate change and acted upon those views in the way in which he led his life, his belief went beyond mere opinion and therefore fell within the meaning of a philosophical belief under the Regulations.
Grainger plc unsuccessfully appealed this decision to the Employment Appeal Tribunal (EAT). Mr Justice Burton considered that the belief in question did not need to “constitute or allude to a fully-fledged system of though provided that it otherwise satisfies the limitations…” These limitations are considered in more detail below, but it is clear from this reasoning that there is scope for protection of a wide variety of philosophical beliefs.
Power
Mr Alan Power was a police trainer of Special Constables with the Greater Manchester Police until he was dismissed. His dismissal letter included his current work in the psychic field as one of the reasons for his dismissal.
Mr Power brought a claim in the Employment Tribunal that his dismissal was discriminatory as it was on the grounds of his religious and/or philosophical beliefs.
The Tribunal held that Mr Power’s beliefs including in there being life after death and that the dead can be contacted through mediums were capable of being religious beliefs and/or philosophical beliefs as they had sufficient cogency, seriousness, cohesion and importance and are worthy of respect in a democratic society.
The EAT dismissed the police authority’s appeal. The EAT took account of the fact that Claimant was not alone in his beliefs, which were undisputed as genuine, as the number of worshippers of his faith in a 2001 Census was 32,404, which made it the 8th largest faith group in Britain.
Floodgates opened?
Mr Justice Burton in Nicholson set out the limitations and criteria placed upon the definition of “philosophical belief” (which also applies to religious belief) which he derived mainly from the Attorney General’s comments recorded in Hansard as follows:
(a) The belief must be genuinely held.
(b) It must be a belief and not an opinion or viewpoint based on the present state of information available.
(c) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
(d) It must attain a certain level of cogency, seriousness, cohesion and importance.
(e) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.
He also made reference to the Attorney General’s further comment:
“… an example of a belief that might meet this description is humanism, and examples of something that might not … would be support of a political party or a belief in the supreme nature of the Jedi Knights.”
Well, at least the Jedists have been ruled out, for the time being at any rate. As Yoda might have put it: “Attain a sufficient level of cogency, seriousness, cohesion and importance, you do not. Serious must your belief be, before success in the Tribunal you may be granted.”
Justification
Even if more unexpected beliefs were found to fall within the meaning of philosophical or religious belief, claimants will still be faced by the hurdle of employers arguing that indirect discrimination is justified.
Difficulties may, however, arise for employers where they directly discriminate against an employee for holding a belief which is later found to be a protected belief, as there is currently no defence of justification for direct discrimination on the ground of religious or philosophical belief.
The case of Power may turn out to be one such example. The substantive hearing in Power took place on 23 and 24 November 2009, and judgment has been reserved to determine whether or not Mr Power’s dismissal was due to discrimination on the ground of his philosophical and religious beliefs. One can sympathise with the police authority’s stance in relation to a police trainer holding beliefs in the use of mediums to contact the dead to assist in investigations. However, if such beliefs are found to be the direct and predominant cause of Mr Power’s dismissal, there will be no justification defence.
Reducing the risks
Of course, there is always a risk that employees and candidates will bring discrimination claims against employers. This can be encouraged by the fact that damages are uncapped and there is no length of service requirement. However, there are some practical steps that employers can take to reduce the risk of such claims being successful.
Employers (particularly medium to large employers) should ensure that their workplace policies allow scope for the broadening meaning of religious or philosophical belief, and ensure that such policies are distributed and/or accessible to all employees. Further, employees with managerial responsibility should be made aware of these recent developments of what may constitute religious or philosophical belief and be provided with equal opportunity training.
Where employees or candidates hold strong or conflicting beliefs this will need to be handled delicately. Conflicting beliefs are likely to arise in the workplaces and employers should err on the side of caution on the basis that many beliefs could fall within the protection of the Regulations.
In relation to recruitment and other decisions, employers should take great care when articulating their reasons. Such reasons should, as far as is truthfully practicable, avoid reference to beliefs but should focus instead on well-considered and objective selection or other criteria.
And may the force be with you (oops!)
Natasha Koshnitsky and Rob McCreath are lawyers at Archon Solicitors
