“Philosophical belief” at the workplace

An interesting case is going through the courts at the moment. Its resolution could further expand Employment Tribunal jurisdiction at a time when almost 200,000 claims are being registered annually.

Back in March, Mr Tim Nicholson, formerly Head of Sustainability at property company Grainger, won a ruling at a pre-hearing review that his strong personal commitment to the overwhelming need to battle against climate change was a legally-protected “philosophical belief”.

Mr Nicholson was dismissed last year. The company claims that his position was cut, and he was made redundant, as a result of financial pressures. He claims, however, that his strong belief in climate change provoked clashes with other senior managers which led to him being targeted for redundancy. He is claiming discrimination under the EU-inspired Employment Equality (Religion and Belief) Regulations 2003.

The preamble to these regulations states that “‘religion or belief’ means any religion, religious belief, or similar philosophical belief”. It was assumed that this was meant to give atheists the same protection as Muslims – who were thought to be the chief beneficiaries of the regulations.

Interestingly – and climate change sceptics may bristle – Grainger’s defence was that Mr Nicholson’s views were based on “fact and science” and therefore fell outside the scope of the regulations. What Judge David Sneath ruled, however, was that Mr Nicholson’s commitment went far beyond any scientific analysis – he had changed his lifestyle dramatically to reduce his carbon footprint. This change indicated the depth of his “philosophical belief” and therefore he was to be allowed to make a case to a tribunal that he had been discriminated against. One consequence of this is that, should a tribunal find in his favour, there is no limit on the compensation he could be awarded. Compensation in normal unfair dismissal cases is capped (currently at around £66k), but discrimination cases are different.

No tribunal has yet been held, however, as Grainger is appealing against Judge Sneath’s ruling. A verdict is expected in the next month.

The case has two worrying features. One is that it seems to introduce the idea that the extent of somebody’s commitment to a philosophical belief is of relevance – a novel idea. Does it mean that a belief lightly held is not acceptable? The other is that it could potentially open the door to a host of other beliefs of varying degrees of rationality and create more work for HR departments in trying to anticipate possible problems.

Once again, poorly drafted employment law is to blame for widening the scope of regulation beyond that envisaged at the time it was enacted and subjecting employers to yet more perils when they take on employees. Once again, the unintended consequences of such legislation may actually harm those whom it ostensibly protects. If Mr Nicholson’s case succeeds, one suspects that employers will look very carefully at the CVs of potential employees with a background of – quite legitimate – climate change activism.

Maybe it would be a worthwhile endeavor if someone could assemble a reader with quirky borderline cases of anti-discrimination legislation. Is it, for example, permissible if a Brazilian bar/restaurant wants to employ Brazilian waiters for the sake of authenticity, and no blond Swedes? Or if a company with a distinctly Carribean image does not want a Finnish media representative?

Discriminating against nutters seems a perfectly sensible thing for an employer to do. Indeed I don’t see what’s wrong with discrimination per se. I wonder if the whole anti-discrimination business started up when we had nationalised industries — state monopolies. I do see there is an argument against discrimination in that case, since if there is literally only one employer, which discriminates against you (for whatever reason), you may be unable to find employment in your home country in a particular trade or profession.But in competitive markets, what is the argument against discrimination?

I was on Radio 5 debating sex discrimination in the labour market with a trade unionist. I was given the last word so I decided to say, “Perhaps the Equal Pay Act was justified when you had a labour market dominated by nationalised industries, large oligopolistic and corporatist firms and by monopolistic trade unions that were blatently sexist, but that time is now long past.” She did not get a chance to reply but I don’t think she was very impressed.

Maybe it would be a worthwhile endeavor if someone could assemble a reader with quirky borderline cases of anti-discrimination legislation. Is it, for example, permissible if a Brazilian bar/restaurant wants to employ Brazilian waiters for the sake of authenticity, and no blond Swedes? Or if a company with a distinctly Carribean image does not want a Finnish media representative?

Discriminating against nutters seems a perfectly sensible thing for an employer to do. Indeed I don’t see what’s wrong with discrimination per se. I wonder if the whole anti-discrimination business started up when we had nationalised industries — state monopolies. I do see there is an argument against discrimination in that case, since if there is literally only one employer, which discriminates against you (for whatever reason), you may be unable to find employment in your home country in a particular trade or profession.But in competitive markets, what is the argument against discrimination?

I was on Radio 5 debating sex discrimination in the labour market with a trade unionist. I was given the last word so I decided to say, “Perhaps the Equal Pay Act was justified when you had a labour market dominated by nationalised industries, large oligopolistic and corporatist firms and by monopolistic trade unions that were blatently sexist, but that time is now long past.” She did not get a chance to reply but I don’t think she was very impressed.

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