Grainger Plc & Ors v. Nicholson [2009] UKEAT 0219_09_0311

Mr Nicholson claimed he was dismissed by Grainger plc partly due to his philosophical belief in man-made climate change. The EAT held such a belief, if genuinely held, was capable of qualifying as a philosophical belief under the 2003 Religion or Belief Regulations.

Facts

The Respondent, Mr Nicholson, was employed by Grainger plc until 31 July 2008. The employer claimed dismissal was on grounds of redundancy; Mr Nicholson claimed unfair dismissal and discrimination under the Employment Equality (Religion or Belief) Regulations 2003 based on his asserted philosophical belief about climate change and the environment. In his witness statement, Mr Nicholson stated he strongly believed humanity must urgently cut carbon emissions to avoid catastrophic climate change, and that this belief affected his choice of home, travel, food, consumption and waste practices.

At a pre-hearing review, Regional Employment Judge Sneath held that Mr Nicholson was entitled to pursue his claim under the 2003 Regulations. Grainger plc appealed to the EAT.

Issues

The central issue was whether a belief in man-made (anthropogenic) climate change, and the alleged resulting moral imperatives, was capable of being a ‘philosophical belief’ within the meaning of regulation 2(1)(b) of the 2003 Regulations. Three sub-issues arose:

• How far, if at all, must the belief be similar to a religious belief (given the deletion of the word ‘similar’ by the Equality Act 2006)?
• What limits should be placed on ‘philosophical belief’ — in particular, must it be a settled belief within a system, must it be non-political, and must it not be a scientific belief?
• Whether ECHR jurisprudence (notably Article 9 and Article 2 of Protocol 1) is relevant or persuasive.

Arguments

Appellant (Grainger plc)

Mr Bowers QC submitted that a philosophical belief must (a) be settled and part of a system of beliefs; (b) be philosophical, not political; and (c) not be a scientific belief resulting from research or gathered information. He relied on the High Court of Australia in Church of the New Faith and Lucy Vickers’ description of the Dutch approach requiring a coherent philosophy of life. He also argued the ECHR jurisprudence was not binding on the interpretation of the Regulations, and that regulation 2(1)(d) (lack of belief) created difficulties if climate-change belief qualified.

Respondent (Mr Nicholson)

Miss Rose QC (with Mr Hare) articulated the belief as: mankind is heading towards catastrophic climate change and there is a moral duty to lead lives mitigating this for future generations and to persuade others to do the same. She relied on the EC Framework Directive 2000/78 and ECHR jurisprudence, notably Campbell and Cosans v United Kingdom and R (Williamson) v Secretary of State for Education and Employment, as well as Elias P’s approach in McClintock and Eweida v British Airways.

Judgment

Burton J dismissed the appeal, holding that the belief was capable of being a philosophical belief for the purposes of the 2003 Regulations, without deciding whether it in fact was (this being a matter for evidence and cross-examination at a full hearing).

Relevance of ECHR jurisprudence

Burton J found ECHR authorities directly material, agreeing with Elias P in Eweida that section 3 of the Human Rights Act 1998 required domestic law to be construed compatibly with Convention rights. Drawing on Campbell and Cosans and Williamson, he derived the following criteria for a qualifying philosophical belief:

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

Similarity to religious belief

Notwithstanding removal of the word ‘similar’ from the Regulations by the Equality Act 2006, Burton J held the belief must nonetheless have a similar status or cogency to a religious belief. However, as in Eweida, the belief need not be shared by others, and need not amount to a ‘fully-fledged system of thought’ or an ‘-ism’.

Political beliefs

Support for a political party would not qualify, but belief in a political philosophy or doctrine (such as Socialism, Marxism, Communism or free-market Capitalism) might. Objectionable political philosophies (e.g. racist or homophobic) would be excluded by the requirement that beliefs be worthy of respect in a democratic society and consistent with human dignity, drawing on Article 17 ECHR.

Scientific beliefs

A philosophical belief based on science is not disqualified from protection. Darwinism was given as an example of a belief capable of being philosophical even though based on scientific conclusions. Burton J rejected the argument that McClintock excluded scientifically-informed beliefs; that case turned on Mr McClintock not having adopted his position as a matter of principle.

Lack of belief argument

Burton J rejected the argument that recognising climate-change belief entailed recognising its opposite as a philosophical belief. Regulation 2(1)(d) protects against discrimination based on absence of a belief held by another; it does not require a mirror-image philosophical belief.

Cross-examination

Burton J corrected the Employment Judge’s suggestion that cross-examination on the claimant’s belief would not be permitted. Citing Lord Nicholls in Williamson, he confirmed that at a full hearing there must be evidence and cross-examination directed to the genuineness of the belief and its satisfaction of the criteria identified.

Implications

The decision establishes that a belief in man-made climate change and its associated moral imperatives is capable of being a philosophical belief under the 2003 Regulations, provided that on the evidence it satisfies the five criteria drawn from ECHR jurisprudence. It does not decide that Mr Nicholson’s belief in fact qualifies — that remains to be tested at a full hearing.

The judgment provides an important framework for identifying protected philosophical beliefs in employment discrimination law:

• The threshold requirements are modest but real, and closely modelled on ECHR jurisprudence under Article 9 and Article 2 of Protocol 1.
• Beliefs need not be religious, systematic, shared with others, or free from scientific or political content.
• Objectionable beliefs are filtered out by the ‘worthy of respect’ and human dignity requirements, drawing on Article 17 ECHR.
• Genuineness of belief remains a factual question requiring evidence and, where appropriate, cross-examination.

The decision matters to employers and employees dealing with claims of discrimination based on non-religious convictions, and to legal advisers seeking to identify whether a particular conviction falls within the scope of protection. It also signals that the domestic Regulations are to be construed compatibly with, and by reference to, ECHR jurisprudence. The judgment expressly leaves open the ultimate factual determination and does not decide whether any particular political or scientific belief will in fact qualify — that will depend on evidence in each case.

Verdict: Appeal dismissed. The EAT upheld the Employment Tribunal’s decision that Mr Nicholson’s asserted belief in man-made climate change is capable of being a philosophical belief for the purposes of the Employment Equality (Religion or Belief) Regulations 2003, subject to evidence and cross-examination at a full hearing on genuineness and satisfaction of the applicable criteria.

Source: Grainger Plc & Ors v. Nicholson [2009] UKEAT 0219_09_0311