Arya v London Borough of Waltham Forest: is anti-Semitism a “philosophical belief”?

In a word, “No”…

The facts

Mr Arya, a primary school teacher, lost his job after various allegations of misconduct which included expressing anti-Semitic views to a colleague in a text message and e-mail. Before an Employment Tribunal he brought various claims against Waltham Forest, one of which was that he had been discriminated against because of his philosophical belief that “the Jewish religion’s professed belief in Jews being ‘God’s chosen people’ is at odds with a meritocratic and multicultural society”. The Independent carries a report of some of his other statements.

In a pre-hearing review the ET decided that his belief was genuinely held, that it was a belief and not merely an opinion and that it attained a certain level of seriousness: the tests enunciated by Burton J in Grainger Plc & Ors v Nicholson [2009] UKEAT 0219 09 0311 at paragraph 24. His claim of discrimination failed, however, on the last of Burton J’s criteria: that, in order to be protected, a belief

“… must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others”.

The complaint of discrimination and harassment relating to his alleged philosophical belief was dismissed: his remaining complaints have yet to be heard.

Comment

In Williamson & Ors, R (o a o) v Secretary of State for Education and Employment & Ors [2005] UKHL 15 (which was about the alleged right of Evangelical Christian parents of children at four independent schools to allow the teachers to administer what they rather creepily described as “loving corporal correction” on their behalf) Lord Walker of Gestingthorpe dismissed the appeal but pointed out at para 60 that “in matters of human rights the court should not show liberal tolerance only to tolerant liberals”.

Which is fair enough – and very much the mind-set of the majority of the Fourth Section ECtHR in Redfearn v United Kingdom [2012] ECHR 1878 when it held by four votes to three that that Mr Redfearn’s rights under Article 11 ECHR (peaceful assembly and association) had been violated when he was dismissed from his job as a bus-driver transporting (mainly Asian) children and adults with physical and/or mental disabilities because he was a local election candidate for the British National Party. But how to apply the “worthy of respect” criterion can be problematical: where does one draw the line between views that are eccentric or distasteful and those that are downright harmful?

The BNP is a legally-constituted political party in the UK with two MEPs; and – however much one might dislike its policies – it is difficult to see on what grounds one could legitimately object to someone being a member of it. Avowedly anti-Semitic opinions, on the other hand, would appear to be precisely the kind of thing that the Racial and Religious Hatred Act 2006 was designed to stamp out: see the Schedule to the Act, which defines “religious hatred” as “hatred against a group of persons defined by reference to religious belief or lack of religious belief”.

The case is rather reminiscent of Raabe, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 1736 (Admin), which was about the dismissal of a new member of the Advisory Council on the Misuse of Drugs who had co-written an article, “Gay Marriage and Homosexuality: some medical comments”, on the grounds that its content cast doubt on his credibility as a provider of balanced advice on drug misuse as it affected the LGBT community. As we noted in a previous post, in Raabe Stadlen J held, inter alia, that Article 9 guaranteed only an absolute entitlement to hold religious views: the forum internum. What it did not do was to guarantee absolute protection to their manifestation; nor did it create a right to make offensive public statements with impunity simply because those statements were in some way religiously motivated [para 155].

Yet another post compiled from press reports: if anyone has a copy of the judgment we would very much like to see it…

3 thoughts on “Arya v London Borough of Waltham Forest: is anti-Semitism a “philosophical belief”?

  1. Frank, thanks for this very interesting case. I echo your plea for someone to post the actual decision, as what you have reported here from the press raised a number of concerns for me. First off, of course, I would not endorse any anti-Semitic views. But… does the private expression of such views in an email and a text to one other person disqualify someone from public office? On the report you have given, if the philosophical belief at issue is such an anodyne one (about fairly abstract propositions concerning the “chosen people” status of Jews) then is one not allowed to even express or debate this? I suspect of course that what was said was not at such an abstract and polite level, but may have descended to actual vilification or hatred. Still, while one might be offended by having to work with someone who expressed such views, is there any evidence at all that these views were expressed either to actual Jewish people or to children under his care?

    Second, I am somewhat concerned that you are able to equate this situation with the previous case you cite. So an expression of disagreement with the current orthodoxy about same sex marriage is the same as anti-Semitism?? There are echoes here to me of the case where the gentleman was sacked due to comments about same sex marriage on Facebook and later was found to have been unlawfully dismissed. Certainly I would have concerns about the implications of your final comment that anything seen as “offensive” must never be said, even if it is the working out of a genuinely held religious belief.

    • Neil

      Since I hadn’t seen the judgment from the preliminary hearing I deliberately kept my summary as low-key as possible. The various press reports suggested that some of Mr Arya’s statements were much more objectionable than the one I quoted.

      As to the parallel I drew with Raabe, the point at issue appeared to be Dr Raabe’s views on homosexuality rather than same-sex marriage – and I think that, from an academic lawyer’s point of view, that was a reasonable parallel to draw. I don’t think that a disapproving view of same-sex marriage as an institution is by any stretch of the imagination the same as anti-Semitism. Under the present law, however, I suspect that vilification of homosexuals for being homosexual would be regarded as just as offensive as vilification of Jews for being Jewish.

      As to Smith v Trafford Housing Trust (the Facebook case), I’m not sure that it’s on all fours with Arya anyway. Smith was merely critical of the prospect that same-sex marriages might be conducted in church and his comments were made in a private capacity, outside of working hours and in a moderate way.

      But, ultimately, cases like these always turn on the facts.

      F

  2. Surely there is an important distinction which appears to has been lost between “anti-semitic views” and any religious or philosphical beliefs which are different from those of the adherents of the Jewish faith. That is not to say that an unnecessary expression of that belief can never be inappropriate and offensive and therefore misconduct but freedom of speech and religion must be respected.

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