Employment Law Advocates

I had the pleasure of attending the Employment Appeal Tribunal as an observer yesterday in the case of Grainger v Nicholson, which I previously discussed here. As a result, I am now much less confident of the views which I had then. John Bowers QC, for the appellant employer, argued that the definition of a religious or philosophical belief in employment law must be much narrower than the definition of a religion or belief under Article 9 of the European Convention of Human Rights, which considers a belief in the efficacy of smacking children to qualify for protection. Otherwise, he argued, it would open a floodgate of claims and could potentially also give undeserved protection to the British National Party.

Dinah Rose QC, who represented Mr. Nicholson, countered that the wording of the Religion or Belief Regulations, and the Framework Directive which they implement, makes it clear that the test should be just as wide as it is for Article 9. So, she said, do the comments of Baroness Scotland, sponsoring the bill, in Hansard. This approach is also supported by Justice Elias, as he then was, in Eweida v British Airways (see paragraphs 26-27). The British National Party may nevertheless not easily be protected, as a result of Article 17 of the Convention, which prevents it being used to limit the rights of others.

Because the belief of Mr. Nicholson includes a moral imperative to act to prevent climate change, it is easier to see it as a philosophical belief instead of a scientific theory unlike, say, Darwinism. However, Dinah Rose went on to argue that even Darwinism should be protected. Otherwise, a teacher could be dismissed for a belief in Darwinism but not for belief in creationism. Because a belief in Darwinism is not the same as a non-belief in creationism, it would not always be protected in that way. Leaving aside the fact that modern creationists say that Intelligent Design is itself a scientific theory, this presents a real problem. I have personally been struggling to resolve this matter in a way that I find satisfactory, as neither Darwinism qualifying as a religion nor going without any protection is particularly attractive.

Fortunately perhaps for Justice Burton, he does not have to decide this issue, only the one concerning the environmental beliefs of Mr. Nicholson. He has reserved his judgment and so I shall say no more.