A guest post by Russell Sandberg
An Employment Tribunal has confirmed in a preliminary hearing, in Jackson v Lidl [2020] ET 2302259/2019/V (2-3 September 2020), that Stoicism is capable of being a philosophical belief for the purpose of the Equality Act 2010. It struck out one claim of direct discrimination on grounds of religion or belief while a further claim and a claim for indirect discrimination will now go to a full hearing.
The preliminary hearing judgment does not include the facts of the case but, according to press reports, Jackson was sacked by Lidl for offending colleagues. He brought complaints of wrongful dismissal, unpaid wages, direct and indirect discrimination on grounds of sex, disability, race and religion or belief, an equal pay claim and victimisation claims. This preliminary hearing concerned the religion or belief, disability and equal pay claims. This note will focus only on the religion or belief claims.
The definition of “belief”
The preliminary hearing determined the issue of whether Jackson’s philosophical belief in stoicism was capable of being protected under the Equality Act 2010. Employment Judge Cheetham QC considered the now-familiar five-pronged test from Grainger v Nicholson [2010] ICR 360.
Judge Cheetham held that the evidence showed that Jackson ‘does try to adhere to his philosophical belief in Stoicism in his daily life and that he believes this requires him to behave in a particular way towards others’ [12]. He noted that Jackson described himself as not being a ‘consequentialist’, by which he meant that the realisation that the consequence of what he said would be to cause offence would not stop him from saying it [11]. The judge considered that Jackson was ‘serious in his views ‘and that he applied ‘them consistently and with a single-minded logic’ [14]. He also noted that ‘there can be no dispute that Stoicism as a philosophical belief system has been with us for about 2,300 years’ [15] and that the first three tests in Grainger were met: Jackson’s belief was genuinely held, amounted to more than an opinion and concerned a weighty and substantial aspect of human life [16-18].
In relation to the fourth test (that the belief attains a certain level of cogency, seriousness, cohesion and importance) Judge Cheetham noted that the Employment Appeal Tribunal decision in Gray v Mulberry Company (Design) Ltd [2019] ICR 175 had held that the bar should not be set too high but that where ‘a claimant professes a profound belief as to an important aspect of her life but seeks to apply that belief in a haphazard, arbitrary or random fashion’ then ‘it cannot be said that her belief has attained any measure of cogency or coherence’ [6]. Judge Cheetham noted that in Gray the fourth test in Grainger was regarded as the ‘overarching criterion’ and that in interpreting this the focus should be on the manifestation of the belief’: cohesion ‘is to be understood in the sense of being intelligible and capable of being understood’ [7]. This means that the requirement would not be met if ‘a belief is expressed in relation to one act or omission but inexplicably not expressed in relation to another which is very similar’.
This citation of Gray is curious. That decision in Gray concerned a belief in ‘the statutory human or moral right to own the copyright or moral right to own the copyright and moral rights of her own creative works and output’. The Employment Appeal Tribunal and the Employment Tribunal held that this belief did not fall under the definition of religion or belief under the Equality Act. Interestingly, the Court of Appeal decision ([2019] EWA Civ 1720) upheld the decision but on different grounds: that the issue of whether or not it amounted to a philosophical belief was irrelevant because the claimant was not put at a disadvantage [29]. The Court noted that their judgment was not be taken as endorsing the approach of the Employment Appeal Tribunal that held that the focus should be ‘on manifestation when determining whether there is a protected belief by reference to the Grainger criteria’ [30]. Yet, in the Jackson preliminary hearing, Judge Cheetham quoted the Employment Appeal Tribunal saying precisely that and made no reference to the Court of Appeal decision.
In applying the fourth test, Judge Cheetham noted that for this requirement to be met ‘one must be sufficiently convinced by the manifestation of this belief, as that will demonstrate its cogency, seriousness, cohesion and importance’ and this was met because Jackson ‘applies his belief consistently and it is an important part of his life. It is relevant that he is striving to achieve a state of equanimity because that suggests a guiding purpose, which gives cohesion to his beliefs’ [19].
This approach, considering that a belief is coherent if it is applied consistently and with purpose, is more lenient than some applications of the fourth test by Employment Tribunals which have held that the test is not met where a belief is too narrow (eg Lisk v Shield Guardian Co Ltd & Others [2011] ET 3300873/2011) or needs to have an agreed purpose (eg Conisbee v Crossley Farms Ltd & Ors [2019] UKET 3335357/2018). Judge Cheetham’s approach looking at how the belief is manifested by the claimant is preferable to such approaches that have sought to determine the test objectively (see also Farrell v South Yorkshire Police Authority [2011] ET 2803805/2010). The approach of Judge Cheetham is to be preferred. The fourth test is about how important and serious the belief is to the claimant. It is unfortunate, however, that the Court of Appeal in Grey explicitly said that they did not endorse this approach.
In relation to the fifth Grainger test (the belief being worthy of respect), Judge Cheetham noted that this was the question that concerned him the most: ‘is a conscious disregard of the consequence of saying or doing something where that might – or probably will – cause offence inconsistent with the values of a democratic society?’ [20]. He noted that there was no fundamental right not to be offended but that the law on harassment provided a remedy if offence occurred [21]. He concluded that, although there would be beliefs that ‘would not be worthy of respect in a democratic society, such as a belief founded upon racial superiority’, a belief in Stoicism did not fall into this category: ‘The fact that he is driven in what he says and does by consideration of whether the action is right or wrong, rather than by what may be the consequence, may indeed cause offence, but that does not make the Claimant’s Stoicism unworthy of respect in a democratic society, incompatible with human dignity or in conflict with the fundamental rights of others’ [22].
This approach is significant because, as Andrew Hambler has argued [in A Hambler, ‘Beliefs Unworthy of Respect in a Democratic Society: A View from the Employment Tribunal’ (2020) 22 (2) Ecclesiastical Law Journal 234, 240], in recent cases concerning beliefs that sex is biologically immutable, tribunal chairs have misinterpreted the fifth test by seeming to conflate the notion of harassment, as understood under discrimination law, with incompatibility with human dignity (under Grainger)’. Judge Cheetham comes close to that approach but ultimately rejects it.
Judge Cheetham therefore held that Jackson’s philosophical belief in Stoicism came within the statutory definition under s.10 of the Equality Act [23].
Direct discrimination
Jackson contended that his former employer Lidl had subjected him to direct discrimination on grounds of his belief in Stoicism by (1) requiring people to behave in a proscribed emotional way during disciplinary proceedings and (2) by dismissing him.
Judge Cheetham held that the first claim of direct discrimination had no reasonable prospect of success and should be struck out [40]. He noted that requiring people to behave in a proscribed emotional way during disciplinary proceedings could not amount to direct discrimination because it did not allege that Jackson ‘was treated this way because of his Stoicism, but rather that there was a practice applied to everyone’. He noted that, if anything, this could amount to indirect discrimination but he was not asked to make any amendments.
He noted that the second allegation of direct discrimination seemed to have ‘little reasonable prospect of success’ but that it may be necessary to hear evidence to decide the issues.
Indirect discrimination
Jackson contended that Lidl’s requirement that all staff were required to communicate in a way that cannot be misinterpreted by colleagues amounted to indirect discrimination in that it put Stoics at a particular disadvantage, disadvantaged Jackson because he was dismissed and was told in the disciplinary process that his emotional response to the situation was not acceptable.
Judge Cheetham concluded that this too seemed to have ‘little reasonable prospect of success’ but that again it may be necessary to hear evidence to decide the issues.
Comment
Unless there is a surprising outcome if and when this case goes to a full hearing, it is this preliminary hearing that is likely to be of most interest to law and religion scholars. The discussion of whether Stoicism is a belief for the purpose of the Equality Act is far less contentious than other recent claims and, by and large, there is nothing controversial about Judge Cheetham’s elucidation and application of the Grainger tests. The decision does show, however, an increasingly varied approach being taken by tribunals to the fourth test and a difference in approach to some recent decisions in respect of the fifth test.
It is also noteworthy that the judgment is rather light in terms of citing and discussing other cases on the definition of belief, with the exception of Grainger and Gray (where the Employment Appeal Tribunal decision is discussed but not the Court of Appeal). This underscores the extent to which the case law on the definition of belief for the purpose of the Equality Act 2010 is increasingly complex, confused and contradictory, a point I consider in more detail in my recent comment for the Ecclesiastical Law Journal (R Sandberg, ‘Is the National Health Service a Religion?’ (2020) 22 Ecclesiastical Law Journal 343).
Russell Sandberg