Is an employee's support of a particular football club a protected belief under the Equality Act?

Many people share Diego Maradona's view that “football isn’t a game, nor a sport; it’s a religion”. Religion is, of course, protected under the Equality Act 2010. But is football akin to a religion and does supporting a particular club amount to a protected belief? That was the issue the tribunal had to determine in McClung v Doosan Babcock Ltd. 

Facts

Mr McClung worked for Doosan for around six months as a contractor. He complained that he had not been given further work because he supported Glasgow Rangers and his manager supported Celtic. The two teams are rivals and their fans have, historically, been bitterly divided along sectarian lines. 

He argued that he had been subjected to direct discrimination because of his support for the club.

Decision

To succeed, Mr McClung first had to demonstrate that supporting Rangers was a philosophical belief under section 10 of the Equality Act. 

The Act doesn't define 'philosophical belief'. However, the Employment and Human Rights Commission Code of Practice on Employment states that a belief 'must affect how a person lives their life or perceives the world'. And the Explanatory Notes to the Act expressly state that 'adherence to a particular football team' would not qualify as a belief. 

What legal grounds could Mr McClung assert to rebut this clear guidance?

There are five legal tests that all have to be met to meet the threshold for protection (these are often referred to as the 'Grainger criteria'). 

The belief must: 

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

The tribunal accepted that Mr McClung's support for Rangers was genuine. He'd given evidence that he'd been a fan for over 40 years. He never missed a game, spent most of his money on games and was a member of the supporters club. Following Rangers was a "massive" part of his life and he said that it was as important to him as it was for religious people to go to church. He also told the tribunal that he cared passionately about the UK (in terms of being a strong Unionist) and had allegiance to the Queen.

However, his arguments on the remaining four criteria failed. Supporting a club wasn't the same as holding a belief. The former was achieved by taking an active interest in and being concerned for the success of the club whereas holding a belief required someone to accept that something exists or is true. Mr McClung's support was akin to supporting a political party and previous cases had determined that this didn't meet the Grainger criteria.

Being a football fan also didn't concern a weighty and substantial aspect of human life and behaviour. Although supporting Rangers was important to Mr McClung and to other sports fans, it didn't have any larger consequences for 'humanity as a whole'. It was more a of a 'lifestyle choice'.

You might have thought that Mr McClung would have fared better on the fourth criteria because of the club's links to unionism and to 'good Protestant Christian ... values'. But, the tribunal held that support for the Union wasn't a prerequisite of supporting Rangers and that many fans didn't hold those views.

Mr McClung's belief was also not worthy of respect in the wider sense either. 

Lessons for employers

The five 'Grainger' criteria have been interpreted in a number of cases and we have a clear steer on what beliefs are likely to be protected. These include: a belief in climate change, ethical veganism, in anti-fox hunting, in the 'higher purpose' of public service broadcasting, Scottish independence and that people can not change their sex. But, believing in a political party (such as the SNP) did not meet the required standard. Nor did wearing a poppy in November to represent remembrance or following a vegetarian diet.   

But that's not to say that everyone who, for example, eats a vegan diet or doesn't agree with fox hunting will be protected if they are discriminated against because they hold those beliefs. Each case will be assessed by applying the Grainger criteria. A tribunal will want to know what a person actually believes. And it will want to see evidence of how that belief influences the decisions they make in their daily lives.  

We all believe different things. Some of those beliefs may be protected but many won't be. Don't even attempt to limit what staff can or can't talk about to each other. Ring fencing certain topics as 'no go areas' will generate resentment and could be counter-productive. Nor should you challenge the wisdom or truth of what someone else believes. 

Instead, deal with any issues that arise in the normal way. If there's a problem, find out what is causing it. If it's linked to something an employee believes in, you may need to consider whether their belief is protected, before deciding how to proceed. Where you can focus on the practical difficulties caused by the employee exhibiting their beliefs in the workplace rather than the belief itself. And don't let your own views on an employee’s beliefs affect how you handle the situation. 

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