In Mr E McClung v Doosan Babcock Ltd and others (Scotland: Religion or Belief Discrimination) [2022] UKET 4110538/2019, handed down on 23 August 2022, one of the primary issues was whether or not support for a professional association football club – in this case, [Glasgow] Rangers FC – was a protected belief for the purposes of employment law, and Employment Judge Wiseman held a preliminary hearing focused on that point.

Background

In an earlier hearing in October 2021, Mr McClung had claimed unfair dismissal and discrimination because of religion or belief, on grounds both of his religion as a Protestant Christian and his philosophical belief in supporting Rangers FC.  His primary case was against Doosan Babcock as a principal under section 41 Equality Act 2010 (contract workers); alternatively, he argued that Doosan Babcock was his employer for the purposes of section 39 of that Act. Either way, he argued, he was employed by the second defendant, the recruitment agency NRL Ltd, for the purposes of section 39 [7].

The original pleadings as summarised at [39] evidently did not mention the issue of “religion” (as opposed to his support for Rangers FC) at all:

“The pleadings … make no reference at all to religion, nor to Protestant or Christian. There is only one specific reference to the claimed philosophical belief and that was a comment that Ian Chisholm was ‘unusually ok for a Rangers fan’. This was a comment made to and not about the claimant. It was submitted there was sparse reference to the claimed protected characteristic or any link between the treatment described in the table and the protected characteristic itself.”

The arguments

Mr McClung, who had been a Rangers supporter for most of his life and spent most of his income after his basic house and motoring bills on attending matches [5], argued that for him, “supporting Rangers was a way of life and that it was as important to him as it was for religious people to go to Church” [12]. He also claimed that

“there was a serious aspect to Rangers which made fans the subject of attack by anti-Rangers people. He described himself, and most Rangers fans, as caring passionately about the UK and having loyalty to Northern Ireland and the Queen. He had heard sectarian mocking of the Rangers Ibrox disaster in 1971 where 66 people died, knew of violence on Old Firm match days [when Rangers plays Celtic] and had heard sectarian comments and songs” [10].

For Doosan Babcock and NRL, it was pointed out that during the passage of the Equality Act the then Attorney General, Baroness Scotland, had told the Lords that, to be protected,

“philosophical beliefs had always to be of a similar nature to religious beliefs. It will be for the courts to decide what constitutes a belief for the purposes of the Regulations, but case law suggests that any philosophical belief must attain a certain level of cogency, seriousness, cohesion and importance, must be worthy of respect in a democratic society and must not be incompatible with human dignity. Therefore an example of a belief that might meet this description is humanism, and examples of something that might not … would be support of a political party or a belief in the supreme nature of the Jedi Knights” [14].

It was contended that, on Baroness Scotland’s analysis, a belief in supporting Rangers could not meet those requirements and therefore could not qualify as a philosophical belief amounting to a protected characteristic under the Act [16]. In short, it failed the tests in Grainger plc v Nicholson [2009] UKEAT 0219 09 0311.

The judgment on the philosophical belief issue

As to whether or not support for Rangers FC could amount to a protected philosophical belief, Employment Judge Wiseman noted that the Explanatory Notes to the Equality Act provide examples of religions for the purposes of the Act and stated that “beliefs such as humanism and atheism would be beliefs for the purposes of this provision, but adherence to a particular football team would not be” [56]. Though Mr McClung was a committed Unionist loyal to the Queen and submitted that the “vast majority” of Rangers fans held those views, she was not persuaded in the absence of any evidence that he was necessarily correct. Some supporters would hold those views but, equally, many would not:

“the views referred to by the claimant are not a part of being a supporter; they do not define supporters and are not in any way a prerequisite of being a supporter. The claimant himself acknowledged that support for the Queen and being a strong Unionist were not prerequisites of being a fan” [59].

Having decided that “the claimant’s belief is defined as being a supporter of Rangers Football Club” [61], she then examined it against the criteria in Grainger. On that basis:

• the belief was genuinely held [62] and met the first criterion;
• the claimant’s support for Rangers was “akin to support for a political party which … does not constitute a philosophical belief” and did not, therefore, meet the second criterion [63-65];
• it did not relate to “a weighty and substantial aspect of human life and behaviour” and unlike, for example, ethical veganism was “a lifestyle choice, rather than relating to a substantial aspect of human life and behaviour” and did not, therefore, meet the third criterion [71];
• it failed the fourth criterion because “however fanatical the claimant’s support for Rangers, it lacked the required characteristics of cogency, cohesion and importance … because support for Rangers has no larger consequences for humanity as a whole, nothing underpinning it beyond a desire for the team to do well/win and no impact on how people lived their lives” [77]; and
• because support for Rangers did not invoke “the same respect in a democratic society as matters such as ethical veganism or the governance of a country, both of which for example have been the subject of academic research and commentary” [79], it did not meet the fifth criterion [80].

In conclusion:

“support for Rangers Football Club does not amount to a philosophical belief within the meaning of section 10(2) of the Equality Act 2010, and cannot be relied upon by the claimant as a protected characteristic for the purposes of claiming discrimination under the Equality Act” [81].

Comment

Subsequently, it was reported that Mr McClung had told the Daily Record that he would appeal the decision on his philosophical belief claim. However, given that the Explanatory Notes to the Equality Act specifically dismiss “adherence to a particular football team” as a protected belief, his prospects of success on appeal look fairly dim (and in my view deservedly so).

Frank Cranmer