As you probably know, it is unlawful to discriminate against your employees on the basis of their beliefs, be they religious or philosophical. But these terms are notoriously difficult to define – philosophers have written whole books on the meaning of their subject. The Employment Appeal Tribunal has now decided (Harron v Chief Constable of Dorset Police ET/3101466/2013) that the belief that public service wastes money is, potentially, a philosophical belief. As can be seen from the linked article, there is a suggestion that this threshold is too low and a little unclear, making life even harder for employers.
I would like to suggest that, as long as the employer acts fairly to all, this type of discrimination shouldn’t increase your burdens too much, though it does increase the possible damages.
First, how is philosophical belief defined? It must:
- be genuinely held;
- be a belief, rather than an opinion or viewpoint based on the present state of information;
- relate to a weighty and substantial aspect of human life and behaviour;
- attain a certain level of cogency, seriousness, cohesion and importance;
- be worthy of respect in a democratic society and not incompatible with human dignity or rights.
In this case, the employment tribunal had thought that the belief (that public services are wasteful) passed the first and the fifth hurdles, but not the others. The Employment Appeal Tribunal disagreed, saying the bar had been set too high.
The judgment, however, does not explain how Mr Harron was actually treated, the hearings had been to consider legal issues only. A sensible employer might now consider what acts are outlawed on the basis of their employees having such views.
There are three relevant types of discrimination: direct, indirect and harassment.
Direct discrimination occurs when someone is treated less favourably than another because of the relevant characteristic (belief in this case). Whether or not the law is correct in all its technicalities, it has to be morally wrong to treat someone badly because of a belief – if my employer treated me badly because I believe snowboarding is better than skiing, that would be wrong too, even though it would not be protected by the Equality Act. Harassment has a technical definition, but is basically as described on the tin – it is clearly wrong to harass people.
Indirect discrimination occurs when a “provision, criteria or practice” is applied to all, but its application puts people with the protected characteristic at a disadvantage and cannot be justified. This type of discrimination can sometimes be contravened accidentally by a fair minded employer. But bear in mind that (unlike with most direct discrimination), the employer can try to justify indirect discrimination by saying that the practice was necessary for the business. If the employee’s actions (as a result of the belief) prevented them from performing certain aspects of the job, discrimination may well be justified.
So what do we learn from this? It is always important to treat people fairly. The Equality Act provides a further reason for fair treatment, but it would be wrong anyway to treat people badly because you disagree with their beliefs. In any event, valuing diversity (even of those with strange beliefs) may well be good for team creativity. However, if your business is negatively affected by an employee’s beliefs, don’t be afraid to act – just make sure you can justify your actions.
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employers may be excused for remonstrating that the threshold now appears set far lower than had been anticipated back in 2003 and may be slipping further still. Of all the legally muddied waters they must traverse, the definition of “philosophical belief” in our discrimination legislation is arguably of the most troubled. Employers must therefore tread cautiously in managing perhaps the sometimes vehement, the opinionated or the apparently self-interested views and actions of their employees. Those may just be protected beliefs.