Section 10 of the Equality Act 2010 law covers three different types of belief: religion, religious belief, and philosophical belief. The latter in particular has proved contentious leading to a number of cases around what constitutes a philosophical belief. Most recently, in McClung v Doosan Babcock Lts & Ors, a Rangers fan was unsuccessful in his discrimination claim after the Employment Tribunal ruled devotion to a football club did not amount to a philosophical belief.
‘Philosophical belief’ is loosely defined under the 2010 Act as ‘any religious or philosophical belief…including a lack of belief’. This can be a source of confusion for employers in a politically-charged society where their employees hold vastly different and ever-evolving views and beliefs.
Consequently, guidance has been found in case law with the 2010 case Grainger plc and others v Nicholson setting out five requirements when it comes to a philosophical belief:
- it must be genuinely held;
- it must be belief and not an opinion or viewpoint based on the present state of information available;
- it must relate to a weighty and substantial aspect of human life and behaviour;
- it must attain a certain level of cogency, seriousness, cohesion and importance, and;
- it must be worthy of respect within a democratic society, and must not be incompatible with human dignity or conflict with the fundamental rights of others.
Grainger, along with other relevant case law, underpinned the decision in McClung that support for Rangers Football Club does not amount to a philosophical belief under the Equality Act, and cannot be relied upon as a protected characteristic for the purposes of claiming discrimination.
Edward McClung brought a discrimination claim against construction firm Doosan Babcock and recruitment agency NRL, alleging that his manager, who was a Celtic fan, did not offer him work due to his support of the rival Rangers team. In his submissions, Mr McClung stated that he had supported Rangers for 42 years, was a member of the club, and received yearly birthday cards from them. On match days, he would wake up ‘buzzing’, and never missed a match. He spent most of his income (after bills) on game attendance, and believed that supporting Rangers was a way of life and as important to him as attending church for those who are religious. He described being a fan as setting an example to others in terms of striving to be the best, giving respect, commitment, spending money, and time to travel to see games.
During the Tribunal, the judge considered Casamitjana Costa v League Against Cruel Sports and McEleny v MOD. In Casamitjana, it was decided that ethical veganism satisfied all five criteria set out in Grainger. It was held to be a belief, rather than a viewpoint, and the principle was rooted in morality and was prevalent in all aspect of the employee’s life. Ethical veganism was ruled to possess a high level of cogency, cohesion and importance, as the concept had attracted a clear following amongst businesses and individuals given that it focused on many aspects such as diet, clothing, relationships and travel.
Conversely, in McEleny, the tribunal held that belief in a political party (the Scottish National Party) did not qualify as a protected belief, whereas a belief in Scottish Independence was found to meet the required standard. The tribunal ruled that belief in Scottish Independence was underpinned by fundamental questions regarding sovereignty and self-determination, and that it was philosophical in nature. However, the employee’s support for the SNP itself was linked to his desire to achieve independence rather than a meaningful belief in the party itself or their policies. It was accepted that the employee spent a lot of time campaigning for the party; however, this was not sufficient to satisfy the Grainger test.
In McClung, the Tribunal had regard to the Explanatory notes of 2010 Act, which gives examples of a philosophical belief, stating that ‘adherence to a particular football team would not be’ a philosophical belief capable of protection. It found instead that Mr McClung fell under the definition of a ‘supporter’ – being ‘actively interested in and concerned for the success of (a particular sports team)’. This definition was contrasted with that of ‘belief’ – being an ‘acceptance that something exists or is true, especially one without proof’. As in McEleny, Mr McClung’s support for Rangers was akin to support for a political party.
Support for a football club was not deemed to represent a belief of a weighty or substantial aspect of human life; it was considered instead a lifestyle choice, which had no larger consequences for humanity as a whole. This was likened to Conisbee v Crossley Farms Ltd, a case concerning vegetarianism, where it was pointed out that there were many different reasons behind vegetarianism without a single cohesive underpinning or belief. This applied to McClung, as there was a wide range of Rangers fans with varying reasons behind their support, shown in different ways. There was nothing to suggest fans had to behave, or did behave, in a similar way. It was held that the only common factor linking Rangers fans together was the fact that they wanted their team to win or do well; it therefore lacked the required characteristics of cogency, cohesion, and importance.
Finally, the Tribunal stated that support for Rangers did not invoke the same respect in a democratic society as matters such as ethical veganism or the governance of a country, both of which have been the subject of academic research and commentary.
It is clear that this is an area of law which will continue to develop and expand as different views and beliefs are tested, especially in a post-Covid world. Employers and HR personnel alike will need to keep up accordingly and should exercise caution and sensitivity when handling situations concerning staff beliefs, even if those beliefs are not personally shared.
If you would like to discuss anything raised in this blog, please contact a member of the Employment Team on 03330 430350.
