Scottish independence as a protected philosophical belief? McEleny

The Herald reports that an employment tribunal has ruled that belief in an independent Scotland is a philosophical belief similar to a religion and is protected under equality legislation.

The background

According to the press report, in 2016 Chris McEleny, the SNP group leader on Inverclyde Council, was working as an electrician at the Ministry of Defence plant in Beith, North Ayrshire, when he announced his bid to become his party’s, Deputy Leader. After the leadership hustings began, the MoD revoked his security clearance and suspended him from his job. The MoD’s National Security Vetting then questioned him on his suitability for clearance. He alleged that a number of political issues were raised by National Security Vetting, including his anti-Trident position, his social media activity in relation to Irish politics and a speech that he gave at his party’s conference in 2012. His security clearance was subsequently reinstated but he resigned and took the MoD to an employment tribunal.

The arguments

In Mr C McEleny v Ministry of Defence [2018] UKET S/4105347/2017, he claimed direct discrimination contrary to s.13 of the Equality Act 2010, having been treated less favourably by the MoD because of his philosophical belief in Scottish independence and the social democratic values of the SNP, and cited the SNP constitution in support of his claim [1]. Employment Judge Eccles pointed out that

“The claimant is not alone in his belief in an independent Scotland. Elected SNP Members have represented constituencies in the Scottish Parliament and UK Parliament for many years. The SNP has been in government in Scotland since 2011. The referendum held in Scotland in 2014 was concerned with the question of whether Scotland should be an independent country. The referendum was a constitutional and democratic process. More than 1.5 million of the Scottish electorate voted in favour of independence” [7].

He also argued [10] that his belief in the social democratic values of the SNP was comparable to a belief in the values of the Labour Party which, he submitted, had been found in Mr C Olivier v Department for Work & Pensions [2013] UKET 170140/13 to amount to a philosophical belief.

The MoD resisted the claim, arguing that a belief in an independent Scotland was not a philosophical belief in terms of s.10(2) of the 2010 Act and could not be relied upon as a protected characteristic for the purposes of claiming direct discrimination under s.13 [2]. There was a distinction between a political opinion such as the one held by the claimant and a philosophical belief [12]. Further, Mr McEleny should have brought his claim under s.108(4) of the Employment Rights Act 1996 and complained of unfair dismissal for a reason relating his political opinion or affiliation; the right to proceed under the ERA 1996 highlighted the distinction made by Parliament and the courts between a political opinion or affiliation and a philosophical belief as mutually exclusive concepts distinguishable in law [13]. Moreover – unlike in Northern Ireland – the UK Parliament had never sought to introduce “political opinion” as a specific protected characteristic in England, Wales and Scotland [14]. The solicitor for the MoD also argued that because Mr McEleny had “an opinion as opposed to a belief”, he could not meet the requirement of the second test in Grainger Plc & Ors v Nicholson [2009] UKEAT 0219/09/0311: that a philosophical belief was “noaopiniooviewpoint based on the present state of information available”. The MoD contention was that:

Whether Scottish people would be better off voting for independence and the SNP … is, like any political viewpoint, very much up for debate. It is an opinion with which many agree and many disagree. lt will very much depend upon the present state of information available” [16].

He also claimed that support for Scottish independence and the SNP did not extend far enough beyond Scotland to warrant the status of a philosophical belief [17]. Nor did it have the necessary level of cogency, seriousness, cohesion and importance to meet the fourth test in Grainger [18]. Further, “Scottish independence and the democratic values of the SNP [were] not political opinions worthy of respect in any democratic society outwith the UK” [19].

The judgment

Employment Judge Eccles concluded as follows:

  • that the claimant’s belief in the social democratic values of the SNP was “what might be described as a manifestation of his belief in Scottish independence. He believes that independence for Scotland can best be achieved through the social democratic values of the SNP. He is a member of the SNP because of its principal policy of achieving Scottish independence through the democratic process” [26];
  • that a belief based on political theory was not necessarily incapable of being a philosophical belief [28]; and
  • that though she was not persuaded that the claimant’s belief in the social democratic values of the SNP amounted to a philosophical belief [29], she was equally unpersuaded that a belief in Scottish independence could not amount to a philosophical belief and believed that that position “can be severed and considered separately” [30].

She concluded that belief in independence for Scotland satisfied the tests in Grainger and was not merely an opinion based on the present state of information available:

“The claimant was clear in his evidence that he does not believe in Scottish independence because it will necessarily lead to improved economic and social conditions for people living in Scotland. It is a fundamental belief in the right of Scotland to national sovereignty” [32].

Mr McEleny’s belief in Scottish independence, therefore, amounted to a philosophical belief under s.10(3) of the Equality Act 2010 and could be relied upon as a protected characteristic in order to claim direct discrimination under s.13 of the Equality Act 2010.

Comment

Some of the arguments put forward by the MoD seem, to me at least, to have been rather weak: in particular, the apparent contention that the only possible reason for believing in independence for Scotland could be economic advantage, rather than that independence was a desirable state in itself – on which EJ Eccles observed drily that “Events in Catalonia are a recent example” [33]. More seriously, however, if candidature for the Deputy Leadership of the SNP was seen by the MoD as a potential security issue, how does it feel about the present Scottish Government?

In Grainger v Nicholson, Burton J had concluded at [32] that “the asserted belief held by the claimant [about climate change and the environment] upon which he bases his claim of discrimination” was “capable of being a belief for the purposes of” the Employment Equality (Religion or Belief) Regulations 2003. So if climate change, why not independence for Scotland?

[The judgment is not available on BAILII and I should like to thank Mr McEleny for supplying me with a copy.]

Cite this article as: Frank Cranmer, "Scottish independence as a protected philosophical belief? McEleny" in Law & Religion UK, 7 August 2018, https://lawandreligionuk.com/2018/08/07/scottish-independence-as-a-protected-philosophical-belief-mceleny/

4 thoughts on “Scottish independence as a protected philosophical belief? McEleny

  1. When I was a civil servant in the MoD, we weren’t allowed to be political. That was relaxed after I left, so that junior civil servants could become councillors.

    The interesting question is whether there are any limits to this doctrine, that revoking of security clearance on the grounds of political affiliation, is discriminatory. Certainly, in my day, membership of the Communist Party would have been a problem at the MoD. Nowadays, could normal or positive vetting outcome be lawfully affected adversely membership of a political party whose policy was that Scotland ought to adopt Sharia Law?

    • Devan Maistry
      8th August ‎08‎:‎46‎ ‎AM

      The Court of Appeal in England suggests that establishing a philosophical belief may be pointless.

      In Maistry v BBC a belief in BBC Values was found to be a philosophical belief (EJ Pauline Hughes 29 March 2011, Birmingham 1313142/2010). However, Lord Justice Underhill in finally disposing of the matter (Maistry v BBC [2014] EWCA Civ 1116 (9 July 2014) found that for discrimination to be possible the alleged discriminator must be aware that such a belief is held by the claimant as a philosophical belief.

      Here is the crucial passage from the judgment.

      “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.”

      Christopher McEleny has an impossible task if the Scottish courts follow the Court of Appeal reasoning in Maistry v BBC. He must prove that the MOD knew he held a philosophical belief when it allegedly discriminated against him. But such a philosophical belief has only just been established under cross-examination by a tribunal. The MOD could not have known he held a philosophical belief in Scottish independence and therefore could not have discriminated. The Underhill decision appears to be a deeply cynical application of the law. Hopefully the McEleny case will provide some clarity.

      • Thanks. Since the case isn’t on BAILII and the version on Casetrack has disappeared, following is my note on the judgment in Maistry taken from Law & Justice:

        Maistry v BBC [2014] EWCA Civ 1116: wrongful dismissal – whether belief in ‘BBC values’ philosophical belief within meaning of Employment Equality (Religion or Belief) Regulations 2003.

        Mr Maistry, a BBC journalist latterly employed on the BBC Asian Network, was dismissed on 1 October 2010, with effect from 1 July 2011, on grounds of alleged poor performance. He contended that that the real reason for his dismissal was his age and/or that he believed ‘that public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion’ which, he argued was constituted a philosophical belief protected by the Employment Equality (Religion or Belief) Regulations 2003 [2]. Employment Tribunal Judge Hughes, following Grainger PLC v Nicholson [2010] IRLR 4, had concluded that Maistry’s views about public service broadcasting fell within the Regulations as having ‘a similar status or cogency to a religious belief’ and rejected the BBC’s submission that they amounted to no more than a mission statement [3]. Nevertheless, she dismissed the claim on the grounds that the individual responsible for the act in question was not aware of the Mr Maistry’s belief and was therefore not in any way motivated by it [5] and that, even if there had been evidence to that effect and the burden of proof were reversed, the reason for his dismissal had been his performance, not his belief [5]. In the Employment Appeal Tribunal Lady Stacey had held that Mr Maistry’s contentions were all about unchallengeable matters of fact and therefore unappealable [8].

        Underhill LJ refused leave to appeal. Tribunal Judge Hughes had correctly concluded that if Mr Maistry’s superiors were unaware that he held a philosophical belief about ‘BBC values’ ‘they could not be motivated by that fact or, therefore, be guilty of discrimination; nor could the BBC be so guilty as their employer’ [12] and a generalised assumption that senior management would subscribe to BBC values could not be equated with the knowledge that a particular employee had a philosophical belief in those values [13]. Moreover, her finding was not ‘a finding that subscribing to those values would be a philosophical belief in every case’ [14]:

        ‘if he was saying, as appears to have been the case at least at the appeal stage, that he was being dismissed on the grounds of BBC values because he was not being treated with respect and respect was a BBC value, that is an evident non sequitur’ [16].

        Leave to appeal refused.

        • The BBC encourages a belief in its Values. These Values inform the Corporation’s work and the promotion of its public purposes as set out by the Royal Charter and Agreement. (

          Employees are expected to comply with these Values and it is a responsibility of managers to ensure they do so. Justice Underhill accepts the Values are ‘pervasive’ at the BBC. In the absence of evidence to the contrary the BBC must assume employees subscribe to the Values. Managers cannot claim to be unaware of a belief the BBC publicly espouses as the bedrock of its ethos.

          For Lord Justice Underhill, however, knowledge of the belief does not suffice. What matters is whether the BBC knew that the claimant held such a belief as a philosophical belief. As the existence of a philosophical belief can only be established by a Tribunal, this effectively means discrimination on the grounds of belief is impossible and protection cannot be secured under the law.

          A review of the legislation undertaken by Oxford Brookes University for the Equality and Human Rights Commission omitted consideration of Lord Justice Underhill’s judgment. However, Professor Peter Edge, one of the authors of the report, said: “I think we are still awaiting a decision which properly engages with the issues raised by your case at appellate level, but suspect it will come!”

Leave a Reply

Your email address will not be published.