As originally drafted, the Employment Equality (Religion or Belief) Regulations 2003 prohibited discrimination on grounds of religion or "similar" philosophical beliefs.
Then the Equality Act 2006 removed the requirement for such similarity, and extended the protection to any philosophical belief: the Equality Act 2010 s.10 continues with that wide definition.
Removal of just one word dramatically increased the potential for seeking protection from discrimination on a whole range of lifestyles, ideas and practices. As we’ve reported on many occasions it is fair to say that, over recent years, claimants have put forward quite an esoteric mix of possible candidates, and establishing whether these actually amount to a protected philosophical belief is becoming a standard pre-hearing review issue for employment tribunals.
The tribunals are not, of course, without guidance. In the well-known case of Grainger Plc v Nicholson  ICR 360, the Employment Appeal Tribunal accepted that a "belief that mankind is headed towards catastrophic climate change" is capable, in law, of being a philosophical belief. Apart from adding that specific matter to the list, Burton J sought to explain the requisite features of such a belief:
- it must be genuinely held;
- it must be a belief, not an opinion or viewpoint;
- it must be as to a weighty and substantial aspect of human life and behaviour;
- it must attain a certain level of cogency, seriousness, cohesion and importance;
- 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.
Subsequent cases have allowed that a spiritualist belief in life after death (Greater Manchester Police v Power), concern for animal rights and an opposition to fox-hunting, and even belief in the ethos of the BBC, can all constitute philosophical beliefs.
However, just as it seemed almost anything might be possible, Bedford employment tribunal has been the one to draw a line in the sand. An un-named midwife wanted to wear a silver collar to work as a reflection of her beliefs. Her employer thought otherwise. Based on the above rulings, one might have thought that viewing bondage and sado-masochism as such an important part of this lady’s life would qualify as a philosophical belief – and it very nearly did. The employment tribunal reportedly only hesitated at the last hurdle: it refused to rule that a practice involving "consensual slavery" or, to put it another way, "consensual non-consent", was worthy of respect in a democratic society.
Quite how this squares with the other rulings mentioned seems a little unclear. Of all the Grainger guidelines, this last is surely the most subjective. Not allowing harm to others is an obvious limit to set, but the law has traditionally been reluctant to allow consent to any form of harm. Of course the decision in the Bedford tribunal is at first instance so it should not be regarded as displacing the prior authorities in the higher courts and tribunals. Nonetheless it does provide an interesting example of how tribunals might approach such issues.
Taking a step back it is worth remembering that the concept of a "philosophical belief" clearly started life in 2003 in order to allow that beliefs akin to religious views, albeit not labelled "religion", were protected from discrimination. Have we now widened that concept beyond all recognition, such that the only real limits are set at the point where the law believes it must police what it might see as public morals? If so, tribunals are likely to assume decision making functions which no-one could remotely have contemplated when they were first introduced to deal with what were then know as “labour disputes”.