UK: Discrimination – Philosophical Belief

Authors: Corinna Harris and Stephen Miller 

Mr. Thomas was engaged through an employment agency to provide consultancy services to an NHS Trust. After he was informed his assignment was being terminated early because he had failed to disclose an unspent conviction, he brought a claim for discrimination on the grounds of religion or belief. He alleged his assignment was terminated because of his political affiliation with the English Democrats political party, for whom he had stood for political office, and his philosophical belief in English nationalism. As part of this belief, he held anti-Islamic beliefs, in essence that that there was no place in British society for Muslims or Islam and that Muslims should be forcibly deported from the UK.

At a preliminary hearing, the tribunal found that the fifth criterion of the Grainger test on what amounts to a protected philosophical belief – that the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others – was not satisfied.

Mr. Thomas appealed to the EAT which held that, while the threshold for the fifth criterion of the Grainger test is low, the tribunal was entitled to find that Mr. Thomas’ belief did not pass that threshold.

Key Action Points for Human Resources and In-House Counsel

The EAT commented that the decision in the gender critical belief case of Forstater may not be the last word on the issue. Forstater set a low threshold for beliefs to be protected, finding that only beliefs akin to Nazism, pursuing totalitarianism or ‘espousing violence and hatred in the gravest of forms’ would not be a protectable belief. This case suggests that beliefs which espouse intolerance and discrimination but which fall short of stirring up hatred or violence (such as Nazisim or totalitarianism) may not be protected.

Further clarity is anticipated once the Court of Appeal hands down its decision in the gender critical beliefs case of Higgs v Farmor’s School which was heard earlier this month.

Thomas v Surrey and Borders Partnership NHS Foundation Trust