My regular readers are aware that I am intrigued by the way in which protection of religion or philosophical belief has developed in ways that surely could not have been envisaged when the Regulations which preceded the current protection under the Equality Act 2010 came into force in 2003.
In January I reported that belief in the Labour Party was a characteristic capable of protection under the Act. It should therefore come as no great surprise that a belief in public service attracts the same protection.
Joe Anderson is the current and first directly elected Mayor of Liverpool. It would be fair to say that he divides opinions. Among many things he has been called the left’s answer to Boris Johnson. He was born in 1958 and left school at 16 without any qualifications. He joined the Merchant Navy and spent some time working in the leisure industry. As a mature student at Liverpool John Moores University he obtained a Postgraduate Diploma in Social Work and subsequently became a full-time social worker.
Alongside his working life he was elected as a city councillor in 1988, became leader of the Labour group in 2003 and in 2010 became Leader of the Council. He became elected Mayor in 2012.
The background is relevant because, in Anderson v Chesterfield High School, he contended that he was a victim of direct discrimination as a result of the termination of his employment after an extended leave arrangement to allow him to fulfil his public duties. The period of leave commenced in 2010 but his election as Mayor in 2012 for a four year term prompted the dismissal.
The 2009 Employment Appeal tribunal case of Grainger v Nicholson (which concerned a belief in climate change) established the five point test which has subsequently been used in such cases and was duly applied at the preliminary hearing in this case.
- The belief must be genuinely held. His passion for public service was self-evident and not disputed by the former employer.
- It must be a belief and not…an opinion or viewpoint based on the present state of information available. His belief in public service had been held throughout his adult life and was therefore in no sense transient.
- It must be a belief as to a weighty and substantial aspect of human life and behaviour. “Public service for the common good” was readily accepted as passing this threshold.
- It must attain a certain level of cogency, seriousness, cohesion and importance. There was nothing insubstantial or trivial about the belief. It satisfied each requirement and was clearly understood and firmly held.
- 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. Public service clearly complies with these requirements.
So the test for falling within the statutory definition of a protected characteristic was satisfied. Nonetheless the claim for discrimination failed because a hypothetical comparator on leave for the same period and taking on a four-year commitment, but without any public service element would have been treated the same way.
However, all was not lost for Mr Anderson because the dismissal was procedurally unfair. He was not consulted before his employment was terminated and he was not offered a right to appeal.