Claimant’s anti-Islamic belief is not protected under the Equality Act

EAT upholds tribunal decision that the belief sought to stir up hatred against Muslims

The Equality Act 2010 protects religious beliefs, but protection also extends to philosophical beliefs which are not religious in nature.

Case law has clarified the criteria which a philosophical belief must meet in order for it to be protected under the Equality Act:

i) the belief must be genuinely held;

ii) it must be a 'belief' and not just an opinion or view based on the present state of information;

iii) it must relate to a 'weighty and substantial' aspect of human life and behaviour;

iv) the belief must be sufficiently cogent, serious, coherent and important; and

v) the belief must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

(Grainger plc v Nicholson (EAT 2010))

Shocking and offensive beliefs may be protected

We reported in June 2021 on the decision of the EAT in Forstater v CGD Europe and others. (For more detail, see our article: Claimant’s “gender critical” belief is protected under the Equality Act.) The EAT determined that the claimant’s belief (that trans women are men, trans men are women and that sex is immutable from the point of conception) was protected.

In Forstater, the EAT noted that it had to interpret the Equality Act in line with the Human Rights Act and Article 17 of the European Convention on Human Rights (ECHR) when deciding whether a belief is worthy of respect in a democratic society. Article 17 prohibits the abuse of human rights law to engage in any activity aimed at the destruction of the rights and freedoms of others. The EAT noted that courts dealing with the fundamental rights of freedom of thought, conscience and religion, and freedom of expression must first assess whether the claimant falls outside the scope of protection because of Article 17.

The EAT stated that it is “only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection.” This means that the threshold for protection is low and only those beliefs which aim to destroy the fundamental rights of others will fail to be worthy of respect in a democratic society.

A recent case in the EAT provides helpful commentary on when a belief will not be protected.

Case details: Thomas v Surrey and Borders Partnership NHS Foundation Trust

Mr Thomas provided consultancy services to the NHS Trust through an employment agency. His contract was terminated after around three months. The reason given was that he had not disclosed a previous conviction. Mr Thomas believed that the reason for the termination was in fact his affiliation with the English Democrats and a philosophical belief in English nationalism. He brought a religion or belief discrimination claim to an employment tribunal.

As a preliminary matter, the tribunal considered whether Mr Thomas’s belief was protected under the Equality Act. It commented that English nationalism was capable of being a protected belief. However, taking into account the evidence of his social media posts, it found that Mr Thomas held anti-Islamic beliefs as part of his belief in English nationalism and that these meant his belief was not protected.

The tribunal determined that the focus on Islam to the exclusion of other religions was disdainful and prejudiced, and included a desire to remove Muslims forcibly from the United Kingdom. It concluded that the belief was not protected as it was not worthy of respect in a democratic society, was incompatible with human dignity and conflicted with the fundamental rights of others.

On appeal, the EAT upheld the tribunal’s decision. Although the beliefs had not been found to incite violence towards Muslims, they had been found to stir up disdain, and therefore hatred, of Muslims and Islam. Mr Justice Sheldon commented that a belief that Muslims and Islam had no place in British society shared features with the ideology of Nazism in relation to Jews and Judaism, and he agreed that Mr Thomas’ belief was not capable of protection under the ECHR or the Equality Act.

Is the bar for protection of beliefs too low after Forstater?

Interestingly, the EAT judgment notes that there is some “dissonance” in the European Court of Human Rights case law in this area. Some cases suggest that beliefs will fall outside protection only if they seek to stir up hatred and violence. Other cases suggest that beliefs which seek to stir up intolerance and discrimination might also be found not to be protected, even if they do not go as far as seeking to stir up hatred and violence.

Mr Justice Sheldon commented that the EAT’s conclusion in Forstater that only those beliefs that would be “an affront to Convention principles in a manner akin to that of pursuing totalitarianism or advocating Nazism, or espousing violence and hatred in the gravest of forms” fall foul of Article 17 may not be the last word on the matter. He suggested that it is possible that beliefs that espouse intolerance or discrimination might also fall outside of protection.

Mitigating employment risks

As this case and others clearly show, the question of whether a particular belief is worthy of respect in a democratic society and so will be a protected belief is not straight-forward.

Employers considering policies and practice limiting employees’ ability to express their beliefs, or taking disciplinary decisions where the conduct in question may be based on a particular belief should seek specialist legal advice at an early stage in order to reduce the risk of employment claims.

Further information

You can find further recent articles on this topic on our website:

Professor’s anti-Zionist beliefs found to be protected under Equality Act 2010

Was dismissal of school employee for gender-critical Facebook posts discriminatory?

Dismissal for use of email signature as protest against council’s pronouns policy was not discriminatory