A matter of belief

The 3 November judgment that a deeply held philosophical belief in climate change was “capable if genuinely held, of being a philosophical belief for the purpose of the 2003 Religion and Belief Regulations," has opened up a potential minefield for UK employers. The regulations state that it is unlawful to discriminate against a person on the grounds of their religious or philosophical beliefs.

The judgment arose from the attempt by Tim Nicholson, former head of sustainability at property firm, Grainger, to take his previous bosses to an employment tribunal on the grounds that he had been sacked because his beliefs had set him at odds with his employer. He claimed that these beliefs should be protected from discrimination, as they would be if they were religious beliefs, and Mr Justice Michael Burton agreed.

The definitions held out by the Regulations are not exactly crystal clear. They state: “In these Regulations, ‘religion or belief’ means any religion, religious belief, or similar philosophical belief.” Precisely what effect ‘similar’ has, and what, exactly, is meant by ‘philosophical belief’, will no doubt be argued over in courts, tribunals, and newspapers at great cost until such time as sufficient body of case law has been built up for some degree of clarity to have been reached. Does the word ‘similar’ suggest that a philosophical belief cannot be entirely evidence-based or materialistic? Are political philosophies, such as Marxism, included?

On leaving the hearing, Nicholson was at pains to point out that his beliefs were not religious, but he also neatly covered the way in which they were ‘similar’: “The moral and ethical values are similar to those that are promoted and adopted by many of the world's religions. But one of the key differences I think is that mine is not a faith-based or spiritual-based belief: it is grounded in the overwhelming scientific evidence and it's the combination of that scientific evidence with the moral and ethical imperative to do something about it that is distinct from a religion.”

What little of the press comment has pointed out is that the same regulations give exemptions at the recruitment stage to employers: “where an employer has an ethos based on religion or belief and, having regard to that ethos and to the nature of the employment or the context in which it is carried out –

(a) being of a particular religion or belief is a genuine occupational requirement for the job; (b) it is proportionate to apply that requirement in the particular case, and (c) either - (i) the person to whom that requirement is applied does not meet it, or (ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it.”

With the introduction of the word ‘ethos’, yet more problems arise, but in theory it might be possible for an organisation to adopt an ‘ethos’ based on religion or belief’ which allowed it to recruit only bicycle-pedalling environmentalists or committed anarchists. At this point, employment law turns into absurdist drama, and risk management can only shake its head in despair. There is a point at which trying to legislate for everyone to be nice to everyone else becomes an exercise in futility and in the enrichment of lawyers.