Secular atheism as a protected belief: Sleath v West Midlands Trains

Background

In Mr J Sleath v West Midlands Trains Ltd [2021] UKET 1310379/2020, the claimant, a senior train conductor, posted the following on his personal Facebook page:

“Thank F+++ our pubs open up today. We cannot let our way of life become like some sort of muslim alcohol-free caliphate just to beat Covid19. We must button up, face it, stiff upper lip, if necessary herd immunity it, but we must learn to live with it & not let our fantastic culture & way of life be trashed. Rmt Leamingtonbranch” [6].

The result was an anonymous complaint about the post to his employer [8]. In a follow-up post, he wrote this:

“Apparently someone has complained about a comment I made about hoping UK never becomes an alcohol-free muslim caliphate! (Or Islamic State). Unbelievable but true! If that’s a controversial statement now, the world’s gone mad! – Incidentally, I wouldn’t want UK to become any sort of religious or theocratic State, whether muslim, hindu, buddhist, Jewish, Chinese politburo, or even Christian. I wouldn’t even want an atheist state, my faith, if it involved banning other beliefs!” [9].

After an investigation, Mr Sleath was dismissed for gross misconduct, namely: ‘‘Posting racially offensive and discriminatory posts on Social Media in contravention of WMT’s Code of Conduct’ [10 & 11].

The claimant’s submissions

Before the Employment Tribunal, he claimed unfair dismissal and both direct and indirect discrimination based on religion or belief: in this case, secular atheism. For his claim of indirect discrimination, he relied on the provision, criterion or practice of “application of its disciplinary procedure, and in particular, the listing as an act of gross misconduct ‘deliberate discrimination or harassment, or incitement to harass or discriminate on the grounds of race, sex or gender reassignment, religion, disability, age or sexual orientation’” 13-15]. He described himself as “[a] secular, pluralist, atheist who wants to live in a State where all political, religious, or philosophical beliefs can be expounded and where freedom of speech exists” and claimed that his beliefs “had been ignored by WMT. They are as important to me as a religious person’s beliefs are to them” [21].

The judgment

In a preliminary hearing, Employment Judge Battisby found for the claimant. Applying the five tests in Grainger Plc & Ors v Nicholson [2009] UKEAT 0219 09 0311:

  • He accepted that the beliefs were genuinely held [45].
  • He rejected the respondent’s contention that the beliefs in question were “simply a viewpoint predicated on the opening of public houses, rather than being philosophical beliefs” [46].
  • He accepted that the claimant’s references in his Facebook post were his way of expressing his beliefs about religious theocracies such as in a territory run by ISIS, which was obviously contemporary and relevant, and therefore related to a matter of substance [47].
  • He rejected the respondent’s assertion that the claimant’s beliefs were “ambiguous and incoherent” [48].
  • He rejected the respondent’s assertion that the claimant’s beliefs were anti-Islam and anti-Muslim, and therefore not worthy of respect in a democratic society: “I do not consider for the purposes of the present exercise that the claimant’s views are, or were intended to be anti-Islam or anti-Muslim, but, in any event, to use the words of the President in Forstater, the claimant’s beliefs do not get anywhere near to approaching the kind of belief akin to Nazism or totalitarianism that would warrant the application of Article 17 [Prohibition of abuse of rights]” [49: and see Forstater v CGD Europe & Ors [2021] UKEAT 0105 20 1006 at [111].

He concluded that Mr Sleath’s beliefs satisfied the threshold set out in Grainger and qualified as protected beliefs under s.10 Equality Act 2010 [50]. The substantive issue to be decided by the Tribunal was whether he had been discriminated against because of his beliefs and/or the way he manifested them, “and that will depend on hearing all the evidence and putting the beliefs into context. That is when the balancing exercise arises under the second stage of the analysis under Articles 9(2) and 10(2)” [51].

Comment

This was a preliminary proceeding, and the final determination awaits the outcome of the substantive hearing. However, the judgment suggests that the EAT ruling in Forstater has somewhat lowered the bar for what is now to be regarded as a philosophical belief for the purposes of s.10 Equality Act 2010.

[With thanks to Russell Sandberg for drawing the judgment to my attention.]

Cite this article as: Frank Cranmer, "Secular atheism as a protected belief: Sleath v West Midlands Trains" in Law & Religion UK, 5 August 2021, https://lawandreligionuk.com/2021/08/05/secular-atheism-as-a-protected-belief-sleath-v-west-midlands-trains/

3 thoughts on “Secular atheism as a protected belief: Sleath v West Midlands Trains

  1. It is scarcely surprising that atheism as such or denial of any particular belief counts as a ‘religion or belief’ under the Equality Act. What is shocking is that (according to the Daily Mail at least – https://www.dailymail.co.uk/news/article-9855799/Atheist-said-didnt-want-live-Muslim-alcohol-free-caliphate-sue-employer.html) “Judge Battisby agrees with West Midlands Trains that his discrimination case has little reasonable prospect of success”. Mr Sleath’s remarks (which the Mail quotes at length) look totally innocuous to me and exactly in line with what I would think. They may be a bit provocatively expressed but they’re way off even being insulting. Or is there more to the case that I have not noticed?

    • For what it’s worth, nor does it surprise me that atheism or agnosticism should be a protected philosophical belief.

  2. It should be noted that C claims discrimination and unfair dismissal. I would bet good money that he will succeed in proving unfair dismissal, even if he fails to prove discrimination. The recent Christian Concern case would likely have succeeded on the unfair dismissal claim, if only they hadn’t dropped the unfair dismissal claim from their pleadings, preferring instead to put all their eggs into the one discrimination basket (which broke), making their task more difficult.

    It isn’t surprising either that C’s beliefs should have been held to be protected, meeting the Grainger criteria. It would be alarming indeed if they hadn’t been found worthy of respect.

    But that does not mean proving discrimination will be plain sailing in this case, even though unfair dismissal sticks out like a sore thumb. I won’t go into details as to why I say this, because I am not a lawyer, and there are plenty of readers of this blog who are lawyers, and therefore better-qualified than I am to expand this point.

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