Is a belief in English nationalism protected under the Equality Act 2010?
Not on these facts, according to the EAT in Thomas v Surrey and Borders Partnership NHS Foundation Trust and another.
Facts
Mr Thomas was engaged to work at the hospital via a job agency. His assignment was terminated after three months when the trust discovered Mr Thomas had an unspent conviction he failed to declare. Mr Thomas believed that that the real reason for his termination was because he had a political affiliation with the English Democrats and believed in ‘English nationalism’. He argued that his beliefs were protected philosophical beliefs under the Equality Act and he issued proceedings against the hospital for direct discrimination.
In order to get off the starting blocks in terms of his claim, Mr Thomas had to demonstrate that his beliefs met the five legal tests set out in Grainger v Nicholson (these are often referred to as the 'Grainger criteria').
The belief must:
- be genuinely held
- not simply be an opinion or viewpoint based on the present state of information available
- concern a weighty and substantial aspect of human life and behaviour
- attain a certain level of cogency, seriousness, cohesion and importance
- 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 Thomas met the first four criteria. He genuinely believed in the national identity of the English and had invested time, money and his personal reputation into political activism including unsuccessfully trying to be elected to parliament. It found that the terms in which Mr Thomas had expressed his views were usually offensive and disparaging but were not ‘outside the bounds of democratic debate’ and, therefore, met the fourth Grainger criteria.
The tribunal judge said that that if Mr Thomas had limited his beliefs to these, they would have been protected. But a core part of his belief in English nationalism included a ‘disdainful and prejudiced focus on Islam’ and the way in which he expressed those views amounted to ‘a generalised form of harassment targeting a particular religion’.
The tribunal found that Mr Thomas had made a number of anti-Muslim comments, had used the hashtag RemoveAllMuslims, and had said in evidence that Islam in its current form should be banned from England unless it was ‘Anglicised’ and ‘toned down’.
This meant that Mr Thomas's particular beliefs failed the fifth Grainger criteria.
Mr Thomas appealed to the EAT arguing that the tribunal had misunderstood the law.
Decision of the EAT
The EAT reviewed an extensive list of cases including those made by the European Court of Human Rights. All say much the same thing: an individual's right to freedom of thought and expression is protected unless it destroys the rights and freedoms of others. Saying something that would offend, shock or disturb others is not enough: the hallmark of a functioning democracy means that a broad range of beliefs must be tolerated. This means that only exceptional and extreme cases won't be protected.
The EAT said that the tribunal had been correct to determine that Mr Thomas's version of English nationalism was not worthy of respect in a democratic society. His views went much further than being offensive, shocking or disturbing. He believed there is no place in British society for Muslims or Islam itself and advocated that Muslims should be ‘coercively removed’ from the UK. Whilst these beliefs did not have the effect of inciting violence towards Muslims, they were likely to stir up disdain and hatred of Islam and Muslims. His ideological views were analogous to those espoused by the Nazi's who did not see there being any place within German society for Jews. This put Mr Thomas's comments into the category of the gravest forms of ‘hate speech’.
Lessons for employers
The bar for protection under the Equality Act is low. Your staff have an absolute right to hold views that you find abhorrent and, as the EAT acknowledged in this case, you can only (safely) discriminate against an employee by, for example, dismissing them in exceptional and extreme cases. In other words, you can only take action because someone has a particular belief if that belief is not protected. As we have seen, only those beliefs that are not worthy of respect in a democratic society, are incompatible with human dignity and don't conflict with the fundamental rights of others aren't protected.
The degree to which your staff can express their beliefs is, however, qualified. You may able to take action against an employee who inappropriately manifests their particular belief - even if it is a protected belief. But you must be even handed in your approach. Don't make the same mistakes we've seen multiple employers make over the last few years - of sanctioning people whose protected beliefs you disagree with whilst giving free rein to those who express views that align with your own values.
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