Tuesday, 17 March 2015

Socialism is a "Belief"

The Employment Appeals Tribunal has made an "interesting" decision in General Municipal and Boilermakers Union v Henderson [2015] UKEAT 0073_14_1303 where it has agreed that a strong commitment to "left-wing democratic socialist beliefs" would constitute a "philosophical belief" for the purpose of s10 Equality Act 2010  which say
(1) Religion means any religion and a reference to religion includes a reference to a lack of religion.

(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.
The judgement itself is lengthy to the point of tedium and involves a dispute between Mr Henderson and his employer who happened to be the GMB Union.  It seems from the judgement that it was accepted by both sides that Mr Henderson had strongly held “left-wing democratic socialist beliefs” and that it was also accepted that these constituted protected beliefs for the purpose of s10.  The rest of the judgement involves the EAT Judge deciding that Mr Henderson was not actually discriminated against because of those beliefs.

However was the EAT Judge right to agree that left wing Socialism was a protected belief under s10 ? In my view she was emphatically and hopelessly wrong.  I covered the question in Chapter 3 of my book "Religious Discrimination and Hatred Law" where I quoted the Parliamentary debate when the Equality Bill was going through Parliament.  Chapter 3 read as follows

"One thing that was made clear in both the Lords and the Commons was that Parliament did not want to see Political Beliefs or the membership of a political party being treated by the courts as a “belief” for the purposes of section 44. Questions were raised on this point in both houses because the definition of “religion or belief” in s44 differed from the definition that was already in place in s2(1) of the Employment Equality (Religion or Belief) Regulations 2003 namely
"religion or belief" means any religion, religious belief, or similar philosophical belief

Concerns were raised that removing the word "similar" could mean that it would become illegal to discriminate against people because of their political beliefs. Home Office Minister Baroness Scotland said (Hansard 13 July 2005 Col 1109)
"The intention behind the wording in Part 2 is identical to that in the employment regulations. However, in drafting Part 2, it was felt that the word "similar" added nothing and was, therefore, redundant. This is because the term "philosophical belief" will take its meaning from the context in which it appears; that is, as part of the legislation relating to discrimination on the grounds of religion or belief. Given that context, philosophical beliefs must therefore always be of a similar nature to religious beliefs. It will be for the courts to decide what constitutes a belief for the purposes of Part 2 of the Bill, but case law suggests that any philosophical belief must attain a certain level of cogency, seriousness, cohesion and importance, must be worthy of respect in a democratic society and must not be incompatible with human dignity. Therefore an example of a belief that might meet this description is humanism, and examples of something that might not—I hope I do not give any offence to anyone present in the Chamber—would be support of a political party or a belief in the supreme nature of the Jedi Knights."

Whilst Home Office Minister Paul Goggins MP said (Hansard 6 December 2005 Col 146)
"philosophical belief is not limitless; for example, it would not be possible to claim that belief in the supremacy of a certain football team qualified as a religion or philosophical belief. Nor, indeed, could that claim be made about belief in the principles of a political party, the point raised by the hon. Gentleman. We know that because of the case in April this year of Baggs v. Fudge, in which a member of the British National party sought to challenge the refusal of an organisation to interview him for a job under the Employment Equality (Religion or Belief) Regulations 2003, which incorporate wording about “philosophical belief” similar to that in the Bill. That individual’s argument, that his support for the BNP constituted a philosophical belief, was thoroughly rejected by the tribunal, so there is no case to suggest that any such political belief would qualify as a religion or belief under the Bill. We are not making up the provisions on the spur of the moment; as I said, there is a precedent for them in the 2003 regulations.
Mr. Grieve: I can understand the rationale in Baggs v. Fudge, which concerned an adherence to a political party, as I understand it. That seems to me to be capable of being distinguished from an adherence to a particular philosophical belief. There may be no such difference, but the Minister may understand why I remain slightly troubled by this point. It is one thing to say, “We refused to interview him because he was a member of the BNP” and another to say, “We refused to interview him because we knew that he had a belief in white supremacy”. Maybe there is no distinction between those two statements, but I see a capacity for one. I wonder whether we are in danger of opening a door to people to make such arguments.
Paul Goggins: Often those two things, a particular belief and association with an organisation, are inextricably linked. In the end it will always be for the court, the employment tribunal or other judicial setting to determine whether the provisions of a particular employment law are relevant to a particular case. Our job here is to set out in legislation the overall provisions, and that we do, in a way that does not give limitless extent to the concept of philosophical belief, but ensures that it is consistent with the hallmarks of religious belief, such as cogency, which I quoted earlier"

So is a belief in Political Islamism or indeed Fascism, now protected by the Equality Act ?   

Thursday, 12 March 2015

Equality and Human Rights Commission Report

The Equality and Human Rights Commission has issued a Report on Religion or belief in the workplace and service delivery which is an analysis of a consultation regarding the operation of the Equality Act 2010 in relation to protecting (or not protecting) expressions of Religion and Belief especially in the workplace

I was asked to speak on the subject to BBC Radio Merseyside this morning and you can hear my contribution HERE (I am at 01:06:00  the contribution from the EHRC is at 00:06:00 )

My main point which I have made before is that the real problem is the fact that people increasingly look for reasons to be 'offended' rather than adopting a 'live and let live' attitude to others.  

The EHRC consultation elicited responses from 2,500 people with the largest number of responses coming from Christians from a number of denominations. The EHRC website says that

"Positive experiences included respondents describing workplaces with an inclusive environment in which employees and employers were able to discuss openly the impact of religion or belief on employees or customers. Some respondents of different religions also reported they were easily able to take time off to celebrate religious holidays.

Some employees or service users stated that they had experienced no or few negative issues in their workplace or in receiving a service which they attributed to the view of employers or service providers that religion or belief was a private matter and should not be discussed in the workplace or the service.

Some employees and students stated that they had encountered hostile and unwelcoming environments in relation to the holding, or not holding, of a religion or belief. The issues raised concerned the recruitment process, working conditions, including the wearing of religious clothing or symbols, promotion and progression, and time off work for religious holidays and holy days. Some reported that particular beliefs were mocked or dismissed in the workplace or classroom, or criticised unwelcome 'preaching' or proselytising, or the expression of hurtful or derogatory remarks aimed at particular groups.

Employees and employers reported that requests relating to religion or belief issues were not always fairly dealt with in the workplace and some called for better guidance on how to achieve this.

Many participants were concerned about the right balance between the freedom to express religious views and the right of others to be free from discrimination or harassment. Specific issues raised included conscientious objection in relation to marriage of same sex couples and how to protect employees from harassment and discrimination by staff, customers or service users with a religion. There was a marked divergence of opinion about when it was desirable and appropriate to discuss religious beliefs with service users during the delivery of a service.

A group of service providers with a religious ethos expressed concerns about reductions in funding opportunities from the public and private sectors.

Some participants viewed the current equality and human rights legal framework relating to religion or belief favourably, arguing that it provided a single robust framework to deal with discrimination and equality. Others were broadly favourable, but felt a pluralistic approach had not yet gone far enough. A third group viewed the law negatively, with some Christian employers, service users and providers considering that Christianity had lost status as a result of the legal framework. "

My own view is that I do not expect to see anything positive coming from the EHRC which so far as I am concerned is simply a waste of the taxpayers money. It is a paradox of EHRC like so many other organisations in modern Britain that is considers itself a beacon of liberal tolerance but that liberal tolerance is only extended to similarly minded tolerant liberals.