Climate change is in the news with the furore caused by the publication of emails from the University of East Anglia’s Climatic Research Unit which have been seized on as suggesting that scientists have deliberately overstated the extent of man-made climate change and a recent survey which suggests that more than half the public don’t believe in climate change since the planet has cooled in the last decade.
By coincidence, in Grainger plc -v- Nicholson, which made the front page of The Independent, the EAT was asked to decide whether a belief in man-made climate change was capable of constituting a “philosophical belief” for the purposes of the Employment Equality (Religion of Belief) Regulations 2003.
The Regulations are often referred to as providing protection from religious discrimination but they also cover “belief” which, according to the Regulations means “any religious or philosophical belief”. There is an intriguing discussion in the judgment concerning what constitutes a philosophical belief. In Williamson -v- Secretary of State for Education and Employment it was held that it is not the function of a tribunal to enquire into a belief and judge its validity by some objective standard so that the protection is in respect of the subjective belief of the individual.
When the Regulations were initially published they referred to “religion or similar philosophical belief” but the word “similar” was removed by the Equality Act 2006 following objections from humanists and atheists.
After considering numerous authorities covering topics such as veganism, corporal punishment, pacifism and total abstinence from alcohol Mr Justice Burton suggested that restrictions limiting the definition of philosophical belief would include requirements that:
- the belief must be genuinely held;
- it must be a belief and not just an opinion or viewpoint;
- it must be a belief as to a weighty and substantial aspect of human life and behaviour;
- it must attain a certain level of cogency, seriousness, cohesion and importance; and
- it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others
As an aside, the judge observed that belief in the supreme nature of Jedi Knights would fail on the basis of non-compliance with at least four of these limitations.. However, socialism, Marxism, communism and free-market capitalism might qualify. Fascism would fail and that is of marginal coincidence taking into account Nick Griffin’s suggestion that climate change is a leftwing conspiracy.
So what does Tim Nicholson believe? According to his witness statement:
“2. I have a strongly held philosophical belief about climate change and the environment. I believe we must urgently cut carbon emissions to avoid catastrophic climate change.
3. It is not merely an opinion but a philosophical belief which affects how I live my life including my choice of home, how I travel, what I buy, what I eat and drink, what I do with my waste and my hopes and my fears. For example, I no longer travel by airplane, I have eco-renovated my home, I try to buy local produce, I have reduced my consumption of meat, I compost my food waste, I encourage others to reduce their carbon emissions and I fear very much for the future of the human race, given the failure to reduce carbon emissions on a global scale.”
Mr Justice Burton concluded that Mr Nicholson’s asserted belief upon which he based his claim of discrimination was capable of being a belief for the purposes of the Regulations, but at any full hearing he would need to be cross-examined as to the genuineness of the belief. Before the claim could succeed there would also need to be evidence to support Mr Nicholson’s claim that he was dismissed on the grounds of his belief rather than, as the employer claimed, redundancy.
The case is an important reminder that employers must not take such matters lightly. It is easy for employers to be dismissive of them because this is a new and fast developing area of protection for employees. As ever, the advice is to be cautious and to take professional advice. If he succeeds with his claim, Mr Nicholson is in line for unlimited compensation.