Can English Nationalism be a protected belief?

One of the protected characteristics covered under the Equality Act 2010 (‘EqA 2010’) is religion and philosophical belief. Whilst religious belief covers faiths such as Islam, Christianity, Judaism etc, philosophical beliefs have come to include a variety of beliefs as being worthy of protection such as environmentalism, veganism, gender critical beliefs and following Rahman Lowe’s landmark victory in February of this year, Anti-Zionism, amongst others.

Background

In the recent case of Mr S Thomas -v- (1) Surrey and Borders Partnership NHS Foundation Trust and (2) Ms A Brett [2024] EAT 141, Mr Thomas who was engaged by the Surrey and Borders Partnership NHS Foundation Trust (“the Trust”) via an agency to provide consultancy services, was dismissed three months after his engagement commenced on the basis that he had failed to declare an unspent conviction. Mr Thomas however issued proceedings against the Trust alleging that his assignment had actually been terminated because of his belief in ‘English nationalism’, and thereby stated that he had been discriminated against on the grounds of his belief.

For a belief to be protected, it must satisfy the criteria established in the case of Grainger PLC -v- Nicholson [2010] ICR 360 (EAT) (‘the Grainger test’) which states that the belief must:

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

Mr Thomas’s belief of English nationalism included the view that Muslims should be forcibly removed from the United Kingdom and that there was no place in society for the religion of Islam.

Decision of the Employment Tribunal (‘ET’)

At a Preliminary Hearing, Employment Judge Hyde relied on the Grainger test, and held that Mr Thomas’s belief of English nationalism satisfied the first four factors set out in the Grainger test. The ET found that even though the views he expressed were offensive, they were not ‘outside the bounds of democratic debate’. However, he was unable to satisfy the fifth criteria.

Employment Judge Hyde considered a number of Mr Thomas’s social media postings and went on to note that “the Claimant held anti-Muslin views, and that they were part of his belief in English nationalism” and that the Claimant’s views were “in short, pure prejudice.”

The ET found that whilst English nationalism was capable of constituting a philosophical belief under section 10 EqA 2010, in view of the fact that Mr Thomas’s belief included anti-Islamic beliefs as part of his philosophical belief, his stated belief could not constitute a protected belief.

The impact of the ET’s decision meant that Mr Thomas was not prevented from holding his views, however he could not claim that he had been discriminated against in relation to his views under the EqA 2010.

Decision of the Employment Appeal Tribunal (‘EAT’)

Mr Thomas appealed against the ET’s decision.

The EAT held that the ET did not err in ruling that Mr Thomas’s belief in English nationalism was not a protected belief under section 10 of EqA 2010.

Mr Justice Sheldon agreed with Employment Judge Hyde that Mr Thomas’s belief did not satisfy the fifth criteria of the Grainger test, which is as set out above that the belief must be worthy of respect in a democratic society and compatible with human dignity and not conflict with the fundamental rights of others.

Sheldon J dismissed the appeal stating:

“of an English nationalism which believes that there is no place in British society for Muslims or Islam itself. In my judgment, that shares features with an ideology such as Nazism which did not see there being any place within German society for Jews. In my judgment, these views are not capable of protection under the Convention as they would offend Article 17” [105].

For further information or to discuss a potential employment law or discrimination claim, please contact our specialist employment solicitors on 0207 3950 5234 or info@rllaw.co.uk. We are ranked as a ‘Leading Firm’ in the Legal 500 and Chambers and Partners independent guides to the UK Legal Profession.

30 September 2024