On the day that sees the opening ceremony of the Winter Olympics in Sochi it might be worth reflecting on an interesting piece posted in August 2012 by Tom Heys on the Lewis Silkin employment journal website: Olympism – a protected belief?. He asks whether the Equality Act 2010 would protect employees with a new-found belief in sports and “Olympism” from discrimination on grounds of religion or belief.
The first paragraph of the Olympic Charter reads as follows:
“1. Olympism is a philosophy of life, exalting and combining in a balanced whole the qualities of body, will and mind. Blending sport with culture and education, Olympism seeks to create a way of life based on the joy of effort, the educational value of good example, social responsibility and respect for universal fundamental ethical principles.”
“4. The practice of sport is a human right. Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play.”
Heys suggests that “Olympism” is a belief that satisfies all the criteria for protection laid down in Grainger v Nicholson  UKEAT 0219 09 0311: it is genuinely held, it is a belief not just an opinion, it relates to a weighty and substantial aspect of human life and behaviour, it has a certain level of cogency, seriousness, cohesion and importance, it is worthy of respect in a democratic society and it has similar status or cogency to a religious belief. Therefore, “Olympism”
“is about much more than simply playing sport: it amounts to a philosophy of life. The four-yearly tournament represents a celebration and promotion of that philosophy, not merely an end in itself. Moreover, Olympism sets out a complete way of living based on effort, setting a good example and fair play. Its values of equality, non-discrimination and encouragement of peace through sport are clearly serious and important, relating to weighty aspects of human life”.
He further points out that the Olympic Charter sets out the fundamental values of the Olympic movement, codifies its rules and organisation and provides not just a constitution but a cogent and cohesive ethos. He concludes by suggesting that at present,
“those with a strong belief in Olympism are probably quite few and far between. But if London 2012 really does inspire a generation, creating the enduring legacy that is hoped for, accommodating Olympist beliefs could become a live issue for employers”.
I am not convinced that “The practice of sport is a human right” per se, though it might possibly by subsumed under Article 11 ECHR (freedom of assembly and association). But on the broader issue might he be correct?
I suspect that the answer is, “quite possibly”. Grainger itself widened the boundaries of “belief” quite considerably; but Maistry v BBC  ET 1313142/2010 went further. Mr Maistry alleged unfair dismissal from the BBC and discrimination on grounds of his philosophical belief that “public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion”. Employment Judge Hughes concluded that Mr Maistry did indeed hold a “philosophical belief” for the purposes of discrimination law and his complaints could therefore proceed to a full hearing.
In reaching that conclusion, the Tribunal applied the tests in Grainger. There was no dispute as to whether or not the belief was “worthy of respect in a democratic society” and it was more than mere opinion, given that the purpose of public broadcasting and the concept of the public space had attracted commentary by broadcasters, philosophers and academics (para 17). The belief concerned a weighty and substantial aspect of human life and neither the Regulations nor the case-law indicated that a ‘mission statement’ could not amount to a philosophical belief if its aims were the result of an underlying philosophical belief (para 18) and the asserted belief was cogent, serious, coherent and important (para 19). The judge did, however, point out that though the scope of “philosophical belief” is wide, meeting the Nicholson test merely established that there was a protected characteristic: “the real battleground is whether there has been less favourable treatment and, if so, whether it was on grounds of the belief relied on” (para 20).
In short, cases like this are highly fact-sensitive. But if a belief in the higher purposes of the BBC Charter can satisfy the Grainger criteria, why not (at least in principle) a belief in the higher purposes of the Olympic Charter?
How might this useful discovery be exploited by the litigious? The full article by Tom Heys suggests one possible application, which I shall show is doomed to fail by a legal precedent involving Christianity:
“For example, long shift patterns could make it impossible for someone to have the opportunity to practise sport in their own time, so preventing them practising their belief.”
No chance. I have long argued that Mba was being wrongly argued. Miss Mba couldn’t keep up her weekly church-going. I said that the unsocial shift pattern of her employer infringed *every* employee’s Article 8 right to a day off every week to do “something* different from his day job on a weekly basis, not necessarily Sunday and not necessarily church-going, including thwarting Mba’s desire to attend her church on Sundays. I publicly criticised Mba’s (Christian activist) legal team, saying that they should have advanced an argument that worked as well for a golf-player who wanted every Monday off as for a church-goer who wanted every Sunday off. Mba lost her case by using the same argument that Tom Heys has proposed (Article 9 rather than Article 8), but with Mba’s church-going replacing Mr Hey’s hypothetical Olympist employee’s sport. With this precedent set, I don’t see how an Olympist is going to get special privileges that the Christian Miss Mba was refused.
It is gratifying to find that I am ahead of the curve once again. I was homophobic long before homophilia practically became a legal obligation imposed by the law of the land. I have also been strongly Olympophobic since my youth. When can we expect the first schoolteachers to be sacked for Olympophobia, or the first street preachers who speak out against Olympism to be arrested under the Public Order Act, for hate speech, I wonder?
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