Legal Updates
Belief in climate change can be a 'philosophical belief'
In Nicholson v Grainger plc, a tribunal has potentially extended the protection afforded by discrimination law and found that a belief that carbon emissions must be cut to avoid catastrophic climate change could amount to a philosophical belief for the purposes of the Employment Equality (Religion or Belief) Regulations.
Background The Employment Equality (Religion or Belief) Regulations 2003 prohibit discrimination by reason of any religion or belief. The term "belief" is defined as "any religious or philosophical belief."
The Religion or Belief Regulations originally referred to "religious belief or similar philosophical belief". According to the Explanatory Guide at the time, the reference to "similar philosophical belief" meant that a belief was only protected if it was similar to a religious belief, for example pacifism, humanism and atheism. When the word "similar" was removed from the definition in April 2007, the Government stated that its intention was not to widen the application of the Religion or Belief Regulations.
Facts Mr Nicholson was made redundant and brought a claim for discrimination on the grounds of religion or belief on the basis that he was selected because of "a strongly held philosophical belief about climate change and the environment". A pre-hearing review was held to consider whether Mr Nicholson's beliefs were protected under the Religion or Belief Regulations. Mr Nicholson argued that his belief relating to climate change and the need to cut carbon emissions was "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 fears."
Decision The tribunal held that Mr Nicholson's beliefs about climate change and the environment went beyond "mere opinion" to give rise to a moral order similar to most religions. As a result they were capable of amounting to a belief for the purposes of the Religion or Belief Regulations.
Mr Nicholson's beliefs met the test adopted by the tribunal: whether the beliefs had "sufficient cogency, seriousness, cohesion and importance" and were "worthy of respect in a democratic society".
Comment Tribunals have previously taken a narrow approach as to what could amount to a belief ruling that patriotism and loyalty to a flag, support for the British National Party, and a view relating to adoption by same-sex couples do not fall within the definition of belief. This appears to be the first case in which a claimant has successfully argued that a belief which is not similar to a religious belief falls within the definition. The decision is, however, being appealed and the tribunal noted that this "should not be seen as the thin edge of the wedge for similarly based complaints".
Even if the EAT agrees that Mr Nicholson's beliefs fall within the protection of the Religion or Belief Regulations, he will still have to show at a full hearing that he was dismissed ostensibly for redundancy but in reality because Grainger disapproved of his beliefs. The employment judge noted that there are unlikely to be many cases where this could be shown.
We will update you as soon as the EAT decision is announced.
Nicholson v Grainger plc and ors ET 2203367/08
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