There seems to be a never ending stream of cases in tribunals at the moment concerning whether claims for discriminatory treatment on the ground of philosophical belief should proceed. In our October 2011 newsletter we examined some of the recent case law on the ever shifting limits of what may qualify as a philosophical belief. A Watford employment tribunal has now very lightly put the brakes on.
In Lisk v Shield Guardian Co Ltd, the subject matter was a topical one. Mr Lisk, an ex serviceman, objected when he was asked by his employer, Shield Guardian, to remove his poppy at work and he submitted claims for direct discrimination and harassment on the protected ground of philosophical belief. A pre hearing review was listed to determine whether the "poppy incident" claim should proceed.
Mr Lisk’s argument was that "we should pay our respects to those who have given our lives for us by wearing a poppy from All Souls’ Day on 2 November to Remembrance Sunday". Noble sentiments, but did this qualify as a belief according to the guidelines set out in Grainger Plc v Nicholson? The tribunal judge had no doubt that Mr Lisk presented as a serious minded individual and that he believed he was entitled to wear a poppy and took the wearing of that emblem very seriously. However he took note of Mr Justice Burton’s comments in Grainger that "I do not doubt at all that there must be some limit placed upon the definition of philosophical belief for the purposes of the [then] regulations" when setting out his guidelines.
The tribunal judge noted that it was not a question of whether Mr Lisk’s actions lacked seriousness (which he accepted they did) but a question of the nature of the belief underpinning the wearing of his poppy. This, however admirable, could not be described as a philosophical belief because it lacked the characteristics of cogency, cohesion and importance that were required in Grainger. It could not fairly be described as being a belief as to a weighty and substantial aspect of human life and behaviour.
This decision does pull back a little on some of the more headline-grabbing cases where philosophical belief claims have been allowed to proceed. However it does not really give any further clear guidance to employers as to where the line should be drawn. I suspect the stream of philosophical belief cases will continue to flow.