Employment and religious beliefs: Nicholson v Grainger

Another internal post:

It was, I suppose, a fairly uncontroversial move in the first instance to try and outlaw religious discrimination in the workplace. Someone shouldn’t be fired or otherwise discriminated simply because of their personal religious beliefs, at least on the assumption that those beliefs don’t interfere with their ability to do their job. Unfortunately, as the recent Employment Appeal Tribunal case of Nicholson v Grainger plc [2009] All ER (D) 59 (Nov) demonstrates, it is one thing to have an uncontroversial idea, quite another to transpose it into uncontroversial regulation.

Parliament’s effort in this regard is represented by the Employment Equality (Religion or Belief) Regulations 2003 (EER 2003). Paragraph 2(1) provides: “(1) In these Regulations – i. “religion” means any religion, ii. “belief” means any religious or philosophical belief, iii. a reference to religion includes a reference to lack of religion, and iv. a reference to belief includes a reference to lack of belief.”

One can imagine the thought process which led to para 2(1). The starting point no doubt was the notion I referred to above, namely not discriminating against a particular religion (human history being riddled with odious examples of religious minorities being persecuted). Secularists objected to religion receiving apparently preferential treatment, hence the definition of belief was extended to include absence of belief, however inaccurately that may define atheism.

It is, however, illogical to single out religious beliefs (and the positive absence thereof) for special protection. In the United States in the 1960s, if one could prove to the authorities’ satisfaction that one was a practising Quaker, then, without more, one might gain exemption from the Vietnam War draft. Yet Mohammed Ali, who made the entirely cogent secular argument that he objected to fighting a war on behalf of a country which subjected him to racial discrimination, against an opponent who had never harmed or threatened him personally, was answered with a sentence of imprisonment. So too would someone who had, say, written a brilliant Harvard Phd on pacifism, yet it is entirely unclear why either the hypothetical Harvard scholar or Ali had a weaker case for exemption than a Quaker.

Therefore the definition for the purposes of the UK regulation was extended to include philosophical beliefs, presumably to cover secular philosophies as pacifism, and it was under this aspect of the definition that Mr Nicholson alleged that his climate change principles fell. He contended that he believed that “we must urgently cut carbon emissions to avoid catastrophic climate change.”

The objection is that such a contention doesn’t really amount to a philosophy, but a view on a disputed area of science. Indeed, proponents of the anthropological global warming theory (AGW) were anxious that it not be classified alongside philosophy or religion, or its scientific credibility might be undermined. Either the greenhouse gas emissions from industrial or other human activities are having a significant detrimental effect on the atmosphere or they are not. Such is to be proved or disproved like any other scientific theory.

Mr Justice Burton was not troubled by that point. He said:

“In my judgment, if a person can establish that he holds a philosophical belief which is based on science, as opposed, for example, to religion, then there is no reason to disqualify it from protection by the Regulations. The Employment Judge drew attention to the existence of empiricist philosophers, no doubt such as Hume and Locke. The best example, as it seems to me, which was canvassed during the course of the hearing, is by reference to the clash of two such philosophies, exemplified in the play Inherit the Wind, i.e. one not simply between those who supported Creationism and those who did not, but between those who positively supported, and wished to teach, only Creationism and those who positively supported, and wished to teach, only Darwinism. Darwinism must plainly be capable of being a philosophical belief, albeit that it may be based entirely on scientific conclusions (not all of which may be uncontroversial).”

I do not see how it can be argued that Darwinism is a philosophical belief – either it is true we are evolved from other forms of life or it is not. It may not be possible to prove it to every scientist’s satisfaction, but that does not move the theory into the realms of philosophy, it simply leaves it as an unproven scientific theory, as for example the tectonic plate theory once was. Nevertheless, for the purposes of the regulations, discriminating against someone because of their acceptance of the theory of evolution is at least as objectionable as discriminating against them because of their philosophical beliefs, so for that reason I suppose it is arguable that we should live with Darwinism and climate change being lumped in with “philosophy” however objectionable that might be to a scientist. Unless, of course, the definition is altered yet again to include “scientific belief” as well.

We seem to be heading therefore to a regulation that covers pretty much any sort of belief whatsoever. During the course of the judgment Burton J also stated that “philosophical belief” could include political belief. This seems unobjectionable: Marxism, or the theories of John Rawls, or Robert Nozick, can properly be described as philosophy.

At various points Burton J caught himself short on two grounds: first, that some religions or belief systems are objectionable, such as discriminating against women, other ethnicities and so on; and secondly, some might be seen as trivial (he specifically mentioned the Jedi religion to which many in the last census purported to subscribe). Having reviewed various authorities he came up with the following mesh to sift out offending belief systems: (i) the belief had to be genuinely held; (ii) it had to be a belief and not an opinion or viewpoint based on the present state of information available; (iii) it had to be a belief as to a weighty and substantial aspect of human life and behaviour; (iv) it had to attain a certain level of cogency, seriousness, cohesion and importance; and (v) it had to be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

In other words it has to be a belief system of which the state approves. We can I suppose simply be grateful that the present state of the United Kingdom is fairly tolerant by historical standards in that regard.

There remains, however, some confusion about the consequences of belief protection. Fair enough that someone should not be fired because they hold certain beliefs, but there is a problem if they start to contend that their beliefs impose positive requirements on their employer. For example, they might argue that they need prayer facilities at the employer’s expense, time out for prayer during the day and religious festivals (without any obligation to make up the time later), and to be excused from doing certain tasks on the ground that their religion precludes it, for example selling meat if they are a vegetarian.

The answer is, or at least should be, that the obligation in a free society is that one is required to respect a person’s right to their beliefs, but not to respect the beliefs themselves. So it would be perfectly acceptable for employee A to hold her religious beliefs, but not for that to impose any cost on her employer or her fellow employees. Otherwise it is compelling them at least partly to accept those beliefs, which might of course be contrary to their own. Employee A should not therefore take on the job in the first place, or should negotiate the terms before she starts.