Is belief in “English Nationalism” a protected characteristic under the terms of s10 Equality Act 2010? Not in the opinion of the Employment Tribunal in Mr S T Uncles v NHS Commissioning Board and others  UKET 1800958/2016.
Mr Uncles brought a series of complaints arising out of the termination of his agency work with the first respondent with effect from 6 May 2016, including unfair dismissal, breach of contract in relation to notice, unlawful deductions from pay and complaints of discrimination or harassment related to race, sex and philosophical belief. The claimant described himself as English, and the philosophical belief on which he relied was a belief in English nationalism . It is the last of these that concerns us here. At the time of his dismissal, he was facing a prosecution for electoral fraud which he had not disclosed to his employers .
Readers will no doubt recall the judgment in Grainger Plc & Ors v Nicholson  UKEAT 0219/09/0311. In Grainger, Burton J held that the claimant’s “strongly held philosophical belief about climate change and the environment” was protected under the Equality Act 2010 and, in doing so, set out five criteria under which a philosophical belief would attract the protection of the Act:
“(i) The belief must be genuinely held.
(ii) It must be a belief and not … an opinion or viewpoint based on the present state of information available.
(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.
(v) 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” .
At the relevant time, Mr Uncles was active in politics as a member of the English Democrats, which he had joined in 2004 and for which he fought the 2010 and 2015 General Elections. He argued that his political activities were a manifestation of his belief in English nationalism .
The ET, however, was not persuaded:
“84. The parties were agreed that the relevant authority was Grainger. Our task was to assess the beliefs of this claimant, not whether a belief in English nationalism in the abstract is a protected characteristic. We concluded that the claimant’s beliefs went beyond the English nationalism described by Mr Linsell [in a supporting statement] and by the claimant in his supplementary witness statement [these are described in paragraphs  to  of the judgment]. Neither statement expressed any view on Islam, yet a strong anti-Islamic theme was evident in his beliefs from the following matters.
85. Firstly, at the time of the alleged contravention of the Equality Act 2010, the claimant had been quoted in an online article about the desirability of setting up a machine gun to take out a few illegal immigrants coming through the Channel Tunnel. The claimant explained the context in which he made this remark, namely that a number of individuals were storming border control posts, and also suggested that he had been misquoted because he had referred to automatic weapons, not to a machine gun. However, whatever the context and precise wording, he clearly advocated killing some illegal immigrants to deter others.
86. Secondly, at the time the claimant had made posts on Facebook about ‘Banning the Burqa’” and how a woman wearing a headscarf was not welcome in the UK.
87. Thirdly, since the termination of the assignment the claimant had posted a number of Tweets which included comments about Islam being only for the insane; that Japan had had the sense to ban Islam; and that Muslims were always the ones being ethnically cleansed and he wondered why that was. He also did not dispute that at times he had used the hashtag ‘#RemoveAllMuslims’.
88. The claimant’s evidence under questioning in this hearing was that Islam in its current form needs to banned unless it is ‘Anglicised’ and ‘toned down.’ He denied that he held that view in May 2016 when the first respondent terminated his assignment, and we considered carefully his assertion that the views subsequently expressed on Twitter were not his views at the time. We unanimously rejected that argument…
89. We therefore concluded as a question of fact that his anti-Islamic beliefs were part of his belief in English nationalism at the time of the termination of his assignment.”
The ET then applied the test in Grainger. On that test:
- the beliefs were genuinely held and were not simply an opinion or a viewpoint but represented a belief about something of a weighty and substantial aspect of human life, namely national identity ;
- they satisfied the test of being serious, cohesive and important and were cogent in the sense of being clearly expressed .
The crunch question, however, was “whether those beliefs were compatible with human dignity or fundamental rights”; and the ET concluded that they were not:
- “aspects of the claimant’s belief were incompatible with the right to life in Article 2 ECHR” ;
- the freedom of religion guaranteed by Article 9 ECHR “is infringed by views which are to the effect that Islam in its current form should be banned if not Anglicised and toned down” ; and
- there was also a likely violation of Article 14 (discrimination): the substantive rights under Article 14 included the right to liberty under Article 5 and the hashtag “#RemoveAllMuslims” could only be construed as indicating coercive removal dependent on religion – which would inevitably infringe the liberty of Muslims who did not wish to be removed from the UK .
The Tribunal concluded, unanimously, that the claimant’s philosophical belief in English nationalism was not a protected characteristic because elements of it were incompatible with the fundamental rights guaranteed by the ECHR . The complaints of direct sex discrimination and of direct race discrimination were also dismissed.
The ET is arguably wrong to exclude Mr Uncles’ version of English Nationalism as they seem to have confused themselves over the ambit of the European Convention on Human Rights; but in any case, they did uphold the idea of English Nationalism being in principle a protected characteristic.
Let’s see what the appeal says!
This article is rubbish. The author cannot even understand that it was Mr Uncle’s personal application of English Nationalism which breached other Human Rights besides his own. This is because his comments were violent and unpleasant.
As you say, correctly, the Tribunal agreed that English Nationalism per se is a protected characteristic. I expect the Appeal Decision said the same – I have not read it.
They should publish a correction to the article. And an update, about the Appeal.
And an apology – it is a disgraceful distortion, and somewhat inexplicable, even allowing for the poor quality of Education in recent decades.
If you would like to send me a link to the judgment in the appeal – which I have not read because it doesn’t appear to be available on BAILII (but then nor have you) – I shall read it and write a note.
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The Court of Appeal judgment in Maistry v BBC  EWCA Civ 1116 suggests that establishing a philosophical belief in order to attract legal protection may be of little value. Lord Justice Underhill found that in order for discrimination to be possible, any alleged discriminator must be aware of a philosophical belief at the relevant time.
He says at paragraph 13: “The Applicant’s essential answer, as I have said, is that it was impossible that the individuals in question could have been unaware of his belief in BBC values given that they are pervasive in the BBC, and perhaps also because he had, in the case of the disputes which gave rise to the acts of complaint or acts complained of, referred to those values, as the Tribunal acknowledged in the passage that I have read. But I am afraid to say that I do not believe that it is arguable that a generalised assumption that senior management employees will subscribe to BBC values can be equated with the knowledge that a particular employee has a philosophical belief in those values. That is not the same thing. The fact that to the applicant those values constituted a belief with similar status and cogency to a religious belief does not mean that will be so in every case. To others it might indeed be no more than their employer’s mission statement about the values that they were expected to observe at work.”
As a philosophical belief can only be established by a tribunal, proving discrimination is impossible. In short if the Court of Appeal is followed it would seem the device of the “philosophical belief” offers no protection making legal analysis somewhat redundant. Additionally the UK may be in breach of a treaty obligation.