The Grainger case – a double edged sword for climate change campaigners?

18 January 2010 by Elspeth Wrigley

Grainger PLC v T Nicholson

Employment Appeal Tribunal (Burton J), November 3 2009 – Read judgment

The Employment Appeal Tribunal has found that belief in climate change is capable of constituting a “philosophical belief” within the meaning of the Employment Equality (Religion or Belief) Regulations 2003 (“the 2003 Regulations”).

The decision of 3 November 2009 also provides important guidance for what constitutes a “philosophical belief” under the 2003 Regulations, as well as raising a number of questions regarding the status of ‘beliefs’ in relation to ‘scientific evidence’, a matter which, the EAT’s findings do not entirely resolve.

SUMMARY

Paragraph 2 of the 2003 Regulations, provides that an employee cannot be dismissed on the grounds of religion or belief.  However, under reg. 2(1), if employees are to enjoy protection, these beliefs must be “religious or philosophical” rather than simply being strongly held opinions.  Mr Nicholson’s claim alleges that he was dismissed on the grounds of his “philosophical belief” in climate change, and was hence discriminated against under reg. 3 of the 2003 Regulations. The Respondent contended that the dismissal was fair on the grounds of redundancy.

The issue of whether Mr Nicholson’s views amounted to a “philosophical belief” within reg. 2(1)(b) was determined in a pre-hearing review.  It should be noted that the claim was not simply that Mr Nicholson believed anthropologically induced climate change to be a reality, but more specifically that he believed that carbon emissions needed to be cut urgently, in order to avoid catastrophic climate change.  In this way, an acceptance of the science is framed as the adoption of a way of life in response, thus more clearly fitting the criteria for a “philosophical belief”.

In support of his position that this was not merely an opinion, Mr Nicholson was able to demonstrate how this belief affected all aspects of his life including his home, travel, food, waste disposal, hopes and fears.  On this basis, the judge accepted that this constituted a “philosophical belief”.

HELD

The original Employment Judge reached no conclusion about Mr Nicholson’s statement as to his belief, on the basis that (paragraph 6),

“… it is not the function of the Tribunal to examine the beliefs before it.  Instead, it is the function of the Tribunal to analyse those beliefs to see whether they engage relevant legislation.”

This position, while established for religious beliefs, was criticised in the EAT judgment (also at paragraph 6) as inappropriate for philosophical beliefs:

“… To establish a religious belief, the claimant may only need to show that he is an adherent to a particular religion.  To establish a philosophical belief, not least to establish, if such be necessary, all the underlying facts set out [by Mr Nicholson] … it is plain that cross examination is likely to be needed.”

As such, the EAT found that, whilst climate change was accepted as a philosophical belief, Mr Nicholson still needed to be cross-examined as to the genuineness of his belief and would need to adduce evidence from which the tribunal could conclude that his dismissal was in fact on the grounds of his belief and not for some other, legitimate, reason.

In paragraph 24 of their judgment, the EAT also set out the criteria, established from previous cases, which must be satisfied for a belief to validly be deemed a philosophical belief, namely:

• the belief must be genuinely held;
• it must be a belief and not an opinion or viewpoint based on the present state of information available;
• it must be a belief as to a weighty and substantial aspect of human life and behaviour;
• it must attain a certain level of cogency, seriousness, cohesion and importance; and
• it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

However, provided these criteria were satisfied, the EAT took a broad interpretation as to what could constitute “philosophical beliefs” for the purpose of the 2003 regulations. For example, they need not constitute or allude to a fully-fledged system of thought (and could therefore potentially include beliefs such as vegetarianism and pacifism).  It was also noted that, although support of a political party might not meet the description of a philosophical beliefs, this did not preclude belief in a political philosophy being valid. However, any alleged philosophical belief based upon a political philosophy which could be characterised as objectionable (for example racist or homophobic) would not be allowed, as they would not meet the requirements set out in the European Convention jurisprudence of being “worthy in a democratic society and compatible with human dignity”. The EAT also found that a philosophical belief could be underpinned by scientific evidence (such as climate change or Darwinism).  Finally, the EAT found that the existence of a positive philosophical belief does not depend on the existence of a negative philosophical belief to the contrary.

COMMENT

Whilst the extension of the 2003 Regulations has been welcomed by many as giving environmental concerns a equal weight alongside religious beliefs in the work place, categorising a position based on scientific conclusions as a philosophical belief could also diminish the weight that individuals’ positions based on scientific evidence enjoy compared to ‘beliefs’ with no rational basis. If an acceptance of climate change is a ‘belief’, so too is its denial.

The potential problems associated by this are illustrated by the following hypothetical illustration by the EAT at paragraph 31,

“… if the Respondent [the employer] has his philosophical belief in climate change, and he were to discriminate against someone else in the workforce who does not have that belief, then the latter would be capable of arguing that he was being treated less favourably because of his absence of the belief held by the Respondent.”

Thus, if the Respondent in the hypothetical example above, were to implement measures to reduce the carbon impact of their company, an employee made redundant for refusing a company policy to exchange their company Jeep for an Oyster card may equally claim unfair dismissal on the basis that they didn’t believe CO2 contributed to climate change.

Broadening of philosophical belief, particularly in relation to “philosophical beliefs” underpinned by scientific evidence, has other potential implications.  At paragraph 30 of the EAT judgment it is held that:

“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 EAT goes on, in the same paragraph to indicate that:

“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 Creationalism 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).”

Unicorns and Fairies

This assertion, although superficially attractive reveals some potentially problematic implications which arise if philosophical beliefs based on science and religious (or other) beliefs are given equal status in this context.

According the same status to both scientific and non-scientific beliefs, threatens to blur the distinction between conclusions based on scientific evidence (evolutionary biology) and those based on faith or religious teachings (Creationalism, for example).  To explore the above example, it appears that those who “positively support and wish to teach only Darwinism” are to be understood as holding a philosophical belief identical in value to Creationalists.  If such a view is accepted, then those teachers who seek to keep faith-based alternatives to science in the religious studies classroom and out of the biology lab, could find their case significantly weakened.  Whether this is a matter of concern, depends on the value scientific findings are considered to have compared to faith positions, and is a matter beyond the scope of this discussion.

The EAT accepted that Mr Nicholson’s asserted belief upon which he based his claim of discrimination was capable of being a belief for the purposes of the 2003 Regulations.  However, the victory was tempered by the requirement that Mr Nicholson still needed to be cross-examined as to the genuineness of his belief and would need to adduce evidence from which the tribunal could conclude that his dismissal was on the grounds of his belief.

This judgment has served to widen the scope of beliefs which may potentially be protected under the 2003 Regulations and has provided clearer guidance on which non-religious beliefs employers must accord due weight. However, drawing science based positions into the realm of philosophical beliefs, could, potentially, have the side-effect of reducing the weight given to positions based on scientific evidence to the same level as those based (in some cases) on fantasy.