An employment tribunal has ruled that a belief in Scottish independence qualifies as a “philosophical belief” under The Equality Act 2010 and accordingly benefits from the anti-discrimination protections of the Act.
The ruling came in the case of Chris McEleny, an SNP councillor and former candidate for the party’s deputy leadership. Mr McEleny was formerly employed as an electrician by the Ministry of Defence at their munitions site in Beith. He claims that in 2016, around the time that he was running for the post of deputy leader of the SNP, his security clearance was revoked by his employer and he was suspended.
Mr McEleny resigned from his post on the basis that he had been unfairly discriminated against due to his belief in Scottish independence.
Subsequently, Mr McEleny brought an employment tribunal claim against the Ministry of Defence claiming discrimination. For his case to proceed, he first had to convince a tribunal that the reason for his discrimination, i.e. his belief in Scottish independence, amounted to one of the “protected characteristics” contained in The Equality Act 2010.
Mr McEleny argued that his belief in Scottish independence was such that it ought to be considered a “philosophical belief” and therefore he ought to be afforded the protections of the Act.
The tribunal considered this alongside an opposing argument from the Ministry of Defence. It was their position that his belief in independence was a political belief did not have a “similar cogency to a religious belief” as to be considered “philosophical”. In support of this, they sought to convince the tribunal that support for Scottish independence did not extend far enough beyond Scotland to amount to a philosophical belief and would have “no substantial impact on the lives of citizens in, for example, Tanzania, Peru or India.”
The Decision
However, the tribunal Judge, Employment Judge Eccles, disagreed with the Ministry of Defence and found in favour of Mr McEleny. She was persuaded by Mr McEleny’s argument that his support for independence had a “sufficiently similar cogency to a religious belief…to qualify as a philosophical belief.”
Grainger Plc and others v Nicholson [2010] IRLR 4 (EAT) was the landmark decision which set out the relevant factors required for a philosophical belief to be established:
- The belief must be genuinely held;
- It must be a belief, not an opinion or viewpoint;
- It must be a belief as to a weighty and substantial aspect of human life;
- It must attain a certain level of cogency, seriousness, cohesion and importance; and
- It must be worthy of respect in a democratic society and not be incompatible with human dignity and/or not conflict with the fundamental rights of others.
It is fair to say, therefore, that this case does not indicate that all political opinion will now be protected from discrimination. It is important to point out that this decision does not even mean that a belief in Scottish independence will now be protected in all circumstances. Rather, it will be for claimants on a case by case basis to show that their own specifically held view amounts to a philosophical belief in terms of the law.
The Judge was clear in Mr McEleny’s case that his personal belief in Scottish independence extended beyond an opinion that independence would improve economic and social conditions and amounted to “fundamental belief in the right of Scotland to national sovereignty”.
Accordingly, she felt that the concepts of autonomy and self-determination were “weighty and substantial aspects of human life” and was persuaded that “how a country should be governed if sufficiently serious to amount to a philosophical belief”.
It had been thought that the case would now proceed to a full hearing on the merits. However, we may not have heard the end of this particular independence debate as a tweet from Mr McEleny posted earlier this week indicates that the MoD have applied to appeal the decision.
Comment
The case highlights that political opinion continues to be an important workplace issue which requires sensible and delicate management. With topics like Brexit and Scottish independence making headline news on a daily basis, it is critical for employers to ensure that they have clear and robust policies in place to manage political opinion in the workplace.
In addition to rights under the Equality Act, where political views are manifested in the workplace or cause conflict, employers need to be clear as to what behaviour is acceptable and ensure that standards of conduct are policed properly. In addition to guarding against potential legal claims, setting a clear code of conduct should avoid tensions in the workplace escalating or the working environment deteriorating, causing a loss in productivity.
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