Employees are protected from discrimination because of their religious or philosophical belief. To be protected, a philosophical belief must meet what is known as the Grainger criteria: be genuinely held, not simply be an opinion or viewpoint based on information currently available, concern 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, be compatible with human dignity and not conflict with the fundamental rights of others.
The EAT has since clarified that, when considering whether a philosophical belief is protected, tribunals should not fall into the error of deciding the merits or validity of the beliefs and should remain neutral on that issue, and a philosophical belief would only be considered as not being worthy of respect in a democratic society, and therefore excluded from protection, if it was the kind of extreme belief the expression of which would be akin to Nazism or totalitarianism, or a belief which incites hatred or violence (Forstater v CGD Europe and ors [2021] UKEAT 0105_20_1006).
It is against this legal backdrop that Leeds Employment Tribunal have recently considered whether an employee’s opposition to critical race theory amounted to a protected philosophical belief. C works for Acas as a senior mediator (his employment is ongoing). C is white, but his wife and children are black. Acas use Yammer, a private workplace communications platform, to aid staff communication. In August 2021, C used Yammer to post that he considered critical race theory (CRT) to be divisive because it portrays white people as racist. CRT is an academic concept which proposes that racism is not merely the product of individual bias or prejudice, but is something that is entrenched in society via its legal systems and policies. Several of his colleagues complained to managers about C’s comment, arguing it promoted racist ideas. Acas dismissed those complaints, but nevertheless instructed C to delete his comments. In response, C brought a claim for unlawful discrimination because of philosophical belief.
A preliminary hearing took place to determine whether C’s beliefs amounted to a protected philosophical belief. The tribunal first explored the substance and nature of C’s beliefs. In summary, C ‘believes that the ‘woke’ approach to racism is misconceived in that its belief in structural racism is divisive because it tends to see white people as a problem that can result in separatism, segregation and ethnocentrism’. C instead ‘prefers the approach of Martin Luther King which he says desires a society where people are judged by the content of their character, rather than the colour of their skin’ because this ‘emphasises what people of all races have in common, namely their humanity and capacity to support a shared national culture’.
The tribunal went on to consider the Grainger criteria, as modified by Forstater. The tribunal said that it had ‘no hesitation’ in finding that C’s beliefs are genuinely held, and that C has a deeply held and carefully considered belief that can be summarised as being that the cause of racial equality is best advanced not through separatism and segregation but by valuing people based on character rather than on race. C’s beliefs relate to a weighty and substantial aspect of human life and behaviour; ‘questions of race and racial equality are clearly important as they affect large proportions, if not all of the population, and relate to equality and justice’. C’s beliefs were also found to have the required level of cogency, seriousness, cohesion and importance, and to be worthy of respect in democratic society, not incompatible with human dignity and to not conflict with the fundamental rights of others. Therefore, C’s belief is a protected philosophical belief, and his claim can now proceed to trial.
Corby v Advisory, Conciliation and Arbitration Service [2023] ET 1805305/2022
Important note: ET level decisions are merely of persuasive value, and are not binding upon future ETs, but can provide a useful indicator of how certain issues are currently being deal within the ET.
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For further information, please contact:
Emma Ahmed, Hill Dickinson
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