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12 September 2019

Protection for employee with “philosophical” belief in Scottish Independence – will Brexit claims follow?

An employment tribunal has found that a belief in Scottish independence amounts to a “philosophical” belief under the Equality Act 2010 (the Act), affording protection from discrimination relating to that belief (McEleny v MOD).

There is no legislation under English law which protects employees from discrimination based on political opinion, so employees have sought to gain protection for political ideology through the “philosophical belief” protection provided under the Act.

Mr McElney has, since childhood, had a deeply held belief in Scottish independence.  He brought an employment tribunal claim alleging he had been treated less favourably by the MOD as a result of this, but as a preliminary issue, the employment tribunal had to determine whether this belief amounted to a “philosophical” belief under the Act. 

The tribunal referred back to the test set out in the earlier case of Grainger and found that his belief did amount to a philosophical belief.  This was because it was genuinely held, amounted to a “belief” rather than an opinion, related to a “weighty and substantial” aspect of human life, had a level of cogency and is a belief worthy of respect in a democratic society.  The case will now proceed to a full hearing of Mr McEleny’s complaints, but what implications could this decision have in the context of the ongoing Brexit debate? 

Not all political opinions will amount to a “philosophical belief” as all the Grainger tests must be met, so the individual’s views will be central to any claim.  Many remainers and leavers alike hold strong and passionate opinions on whether the UK should be in or out of the European Union.  Those who believe they have been treated less favourably at work as a result of those opinions may now seek redress in the tribunal.

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