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.
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.
In Mr C McEleny v Ministry of Defence  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 . 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” .
He also argued  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  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 . There was a distinction between a political opinion such as the one held by the claimant and a philosophical belief . 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 . 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 . 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  UKEAT 0219/09/0311: that a philosophical belief was “not an opinion or viewpoint 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” .
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 . Nor did it have the necessary level of cogency, seriousness, cohesion and importance to meet the fourth test in Grainger . Further, “Scottish independence and the democratic values of the SNP [were] not political opinions worthy of respect in any democratic society outwith the UK” .
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” ;
- that a belief based on political theory was not necessarily incapable of being a philosophical belief ; 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 , 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” .
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” .
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.
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” . 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  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.]