Thursday, 3 December 2009

What Have the Polar Bears Ever Done for Us ?

There have been three cases recently which have shown both the potential and also the problems with The Employment Equality (Religion or Belief) Regulations 2003.

In the case of
Grainger Plc v Nicholson BAILII: [2009] UKEAT 0219_09_0311 which received a lot of publicity the EAT accepted that a believer in Man Made Global Warning was entitled to have his beliefs considered a "philosophical belief" and hence protected under the regulations reg 2(1) of which reads

2(1) In these Regulations—
(a) “religion” means any religion,
(b) “belief” means any religious or philosophical belief,
(c) a reference to religion includes a reference to lack of religion, and
(d) a reference to belief includes a reference to lack of belief.”

Press comment on the case suggested that this meant that belief in Climate Change had now become a religion but this is not the case the judgment clearly distinguished between a religious belief and a philosophical belief and, for example, agreed that the basis of a philosophical belief could be questioned in a Tribunal to an extent not allowed for religious beliefs however it remains to be seen how important this distinction may be in practice.

It is however important to understand firstly that Mr Nicholsons belief in Man Made Climate Change went further that mere agreement with the science of global warming as he was quoted in para 3 of the judgment

"It is 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 my fears. For example, I no longer travel by airplane, I have eco-renovated my home, I try to buy local produce, I have reduced my consumption of meat, I compost my food waste, I encourage others to reduce their carbon emissions and I fear very much for the future of the human race, given the failure to reduce carbon emissions on a global scale"

This was expanded in para 12

"The philosophical belief is that mankind is heading towards catastrophic climate change and therefore we are all under a moral duty to lead our lives in a manner which mitigates or avoids this catastrophe for the benefit of future generations, and to persuade others to do the same."

It is important to note that Mr Nicholsons belief in Man Made Climate Change led to him having a view as to moral behaviour and is therefore to that extent very similar to a religious belief. It was not a case that he simply believed in climate change or agreed with the scientific consensus he considered that this imposed moral obligations on him and others and for that reason I rather suspect that he will lose his actual tribunal case itself. The BBC report on the case said

"Tim Nicholson, 42, of Oxford, was made redundant in 2008 by Grainger Plc in Didcot, as head of sustainability. Mr Nicholson also accused the chief executive, Rupert Dickinson, of showing "contempt" for his concerns and claimed he once flew a member of staff to Ireland to deliver his Blackberry which he had left in London"

and the question the tribunal will have to grapple with is how far Mr Nicholson is entitled to expect his employers to act in accordance with his beliefs, how far is he allowed to"impose" his beliefs on his fellow workmates, put in religious terms does he have the right to "proselytise" and to "manifest" his belief in Man Made Global Warming and my personal answer is that I doubt that he does have that right judging by the ways in which the EAT has treated religious beliefs.

In the recent case of McFarlane v Relate BAILII: [2009] UKEAT 0106_09_3011
the EAT had to consider whether a Marriage Guidance Counselor had the right to decline to advise same sex couples and it said NO based on the case of
Ladelle v Islington Council BAILII: [2008] UKEAT 0453_08_1912
Ladelle is, of course, currently before the Court of Appeal and it will be interesting to see if it reins in the EAT decision in Ladelle which has made it extremely difficult to argue for Religious Rights in the workplace.

In another case (only at ET level) a Spiritualist accused Greater Manhester Police (GMP) of forcing him out of his job in 2008 because of his spiritualist beliefs. Apparently GMP had argued that Spiritualism was not covered by the regulations which surprised me since I would have thought that it clearly was covered, which is what the ET Judge eventually decided however merely because Spiritualism was accepted as a Religion did not mean that GMP lost the case. Mr Power lost on the basis that the decision by GMP had nothing to do with his beliefs. This case shows how, at the end of the day, most legal cases tend to turn on their own specific facts, which may of course end up as the main problem Mr Nicholson faces as he tries to explain why he has the right to decide or indeed comment on his Chief Executive using a plane to return a forgotten Blackberry.

(PS As you may have gathered from the somewhat sarcastic headline to this item I am an unrepentant Climate Change Denier, Which I suppose in view of the Nicholson case makes me a modern day heretic. At least I won't be burnt at the stake for it, just think of the Carbon emissions that would cause !)

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