In Mr A Cave v The Open University  UKET 3313198/2020, the OU received internal and external complaints in June 2020 about what was claimed to be racist material that Mr Cave had posted on Twitter and on a YouTube channel he had set up entitled “Renew Britannia” . For example, when Dr Shola Mos-Shogbamimu celebrated Africa Day in a Twitter post and commented “Proudly African from the roots of my hair to the soles of my feet. Always”, his response was “Fuck off and go home!” .
He was suspended and interviewed at an investigation meeting. A disciplinary meeting followed, and he was summarily dismissed. His appeal was unsuccessful .
In his written attachment to the claim form, he stated that in dismissing him the OU had discriminated against him on the grounds of philosophical, religious, and political belief and claimed that his belief was a protected characteristic, “but did not state directly what that belief was” .
Before the tribunal, he described his general philosophy as “ ’right wing’, ‘anti-egalitarian’, ‘liberal’ on some things, but generally take the ‘traditionalist’ stance on most issues” and that he was an “English Nationalist” . Mass immigration had been “destructive and unhealthy” and there was a “pernicious ideology” which inflicted white guilt on people of “white European descent”. His philosophy of nationalism was that the nation was a “unique group which has sovereignty (self-governance) over its homeland”, and that nations ought to be defined by shared heritage such as common language, culture, faith and ancestry . He also argued that someone who was born in the UK and converted to Islam would be “less British” and that Jewish people were in a distinct ethnoreligious group and could not be British. A Black person would have “less claim to the land and be less British” because “Britishness” depended on ancestry . However, there was no evidence that he had discussed those beliefs at work, nor that he had advocated or used violence:
“His evidence was that he regarded ethnicity and nationality as one and the same and that there are emotional, mental and spiritual differences between races” .
Grainger plc v Nicholson  ICR 360 established five criteria for what constitutes a protected belief for the purposes of section 10 (Religion or belief) of the Equality Act 2010, as follows:
- The belief must be genuinely held;
- It must be a belief and not an opinion or viewpoint based on the present state of information available;
- It must be a belief as to a weighty and substantial aspect of human life and behaviour;
- It must attain a certain level of cogency, seriousness, cohesion and importance;
- It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others .
In Forstater v CGD Europe & Ors  UKEAT 0105 20 1006, the EAT had declared at  that:
“in applying Grainger V, tribunals [should] bear in mind that it is only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred of the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from protection”.
It was argued for Mr Cave that that the belief relied upon was English Nationalism and that other aspects referred to were encompassed in it – including libertarianism, traditionalism, property rights and anti-immigration – and that his English Nationalism included the belief that ancestry was of more significance than others, such as faith .
So far as “cogency, seriousness, cohesion and importance” was concerned, it had been held in McEleney v Ministry of Defence  UKET S/4105347/2017 that a belief in Scottish independence and how Scotland should be governed was sufficiently serious to meet that test. The belief relied on was analogous to religious faith, and some aspects of his belief, like some tenets of orthodox religions, were not necessarily compatible with modern ideas .
For the OU, it was argued that Mr Cave’s belief was not simply Nationalism but “ethnocentric” nationalism:
“that ethnicity is based on ancestry going back hundreds of years which would identify who is in the English nation, with the reference to surnames lacking cogency and being entirely arbitrary” .
Though he had stated that his belief was not based on hostility, he promoted the denial of public services because of race. That was destructive of human dignity because of the effect on the individual. It was not simply unfashionable or not respectable, but racist . It was also argued that the bar in the fifth test in Grainger had been set too high in recent cases  and that in this case the test could not be met .
As to the Grainger tests:
- there was no express challenge to the genuineness of Mr Cave’s stated belief;
- it was more than merely an opinion: “The claimant is articulate about his beliefs, has done some reading and displays relatively well-expressed views about it. It is clearly thought out and based on an assessment of reading the claimant refers to”;
- the tribunal accepted that the stated belief was about a “weighty and substantial aspect of human life and behaviour”; and
- on balance, the belief had a level of cogency, seriousness, cohesion and importance, even though there were likely to be a great many people who disagreed with it .
As to the fifth test, however, Mr Cave’s belief in English Nationalism as he described it did not meet it. It was not worthy of respect in a democratic society, it was incompatible with human dignity and it conflicted with the fundamental rights of others:
“In particular, there is a clear denial of the rights of those without the requisite ancestry to be part of the envisaged nation. The claimant’s unequivocal belief that those who are Black or Jewish are not part of the English nation, for example, patently seriously discriminates against people within those groups. It is, at the very least, ethnocentric, as described by the respondent’s representative and could also arguably be described as racist and/or antisemitic” .
Articles 9 and 10 ECHR were both highly qualified rights, “referring to legally prescribed limitations which are necessary in a democratic society and to protect the rights of others” , while Article 17 prohibited the abuse of rights .
Taking all these matters into account, Employment Judge Manley was not satisfied that Mr Cave’s belief was protected by section 10: claim dismissed .