Green decision opens can of worms for employers

Published: 4th November 2009

The Employment Appeal Tribunal has upheld the decision that an employee's strongly held belief about climate change and the need to protect the environment is capable of being a "belief" which is protected against discrimination in employment under the religion or belief regulations. This decision confirms that employees cannot be less favourably treated for holding such beliefs, but more concerningly the way in which it is reached potentially opens a can of worms for employers when trying to identify who else may be protected.

What is unlawful is not only less favourable treatment on the grounds of religion, but also on the grounds of a religious or philosophical belief. Mr Nicholson has successfully argued in his claim against Grainger Plc that this covers his belief that mankind is heading towards catastrophic climate change and therefore he is under a duty to lead his life in a manner which mitigates or avoids this catastrophe. Importantly this was a settled belief which governed the way he lived his life including what he ate, the holidays he took and how he travelled to work.

However the big problem this decision raises is how far can this concept be stretched? Vegetarianism, pacifism and total abstinence from alcohol are all likely to be protected views. Concerningly, the EAT say that belief in a political philosophy such as socialism, marxism, communism or free market capitalism may well also qualify. Whilst a distinction is drawn between support for a political party and a belief in a philosophy, it is not difficult to see that this decision will be cited by those with extreme political views to support their unpalatable argument that they should not be less favourably treated by their employers or work colleagues for voicing those views.

The Judgment says the test of what is covered is that the belief:

• must be genuinely held;
• must not be an opinion or viewpoint based [only] on the present state of information available;
• must be a belief as to a weighty and substantial aspect of human life and behaviour (which arguably excludes which football team you support);
• must attain a certain level of cogency, seriousness, cohesion and importance; and
• must be worthy of respect in a democratic society, be not incompatible with human dignity or conflict with the fundamental rights of others.

What seems to be implicit in the Judgement is the view that the last point will exclude protection for those with extreme political views, but it is clearly a very grey area and may leave employers with an impossible assessment to make.

You may ask whether this really matters in practice? We hope not, but unfortunately the answer for many of you may be yes. It can be important for employees to assert certain treatment is discrimination to proceed with a claim against you. This applies to those who are not employees (agency workers for example) or those with less than a years service. A discrimination claim also is not subject to any cap on award. As the grounds of discrimination widen, more people are able to bring such claims. For example, a short term agency worker who is not asked back after they voice the view that all environmentalism is nonsense and act accordingly will potentially have a claim.

If this decision raises any concerns for you or your organisation please speak to your usual contact in the Mace & Jones Employment & HR team in Liverpool: 0151 236 8989 or Manchester: 0161 214 0500.