Grainger v Nicholson

03 Nov 2009 By James Medhurst

Judgment has now also been given by the Employment Appeal Tribunal in this case, further to my earlier discussion of the submissions here. The outcome, that a passionate belief in climate change, accompanied by a moral imperative to do something about it, is capable of constituting a philosophical belief for the purpose of the Religion or Belief Regulations, is contrary to my original intuition but unsurprising, having had the benefit of hearing the arguments made on the day. The case of John Bowers QC that the test is narrower than the one for Article 9 of the Human Rights Act is attractive as a matter of policy, to avoid the opening of floodgates, but is impossible to reconcile with comments made by Justice Elias, as he then was, in Eweida, a view that is supported by the Framework Directive itself.

My original disquiet remains. Parliament did not originally legislate for political belief, and Justice Burton is in no doubt that the belief is political in this case, but now it seems that, not only will this lead to more claims, it will also be inconsistent in its effects, protecting some political beliefs but not others. Worse, it may protect those political beliefs which are dogmatically held more easily than those based on the wisdom of experience. Perhaps the solution is to extend protection to all political beliefs, as in Northern Ireland, although exemptions would presumably have to be made, for example, for editorial staff at the Guardian or the Daily Telegraph. However, legally speaking, the decision cannot be faulted.

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