In Thomas v Surrey and Borders Partnership NHS Foundation Trust & Anor [2024] EAT 141, Mr Thomas had been engaged by the Trust through an employment agency, but his assignment with the Trust had been terminated. He believed that the reason for the termination was his political affiliation – he had stood for political office between 2004 and 2016 for the English Democrats – and that his dismissal was because of his philosophical belief in English nationalism, contrary to the Equality Act 2010 [4]. The respondents denied that his appointment had been terminated because he had given misleading information on his CV and Candidate Application Form. They also contended that his philosophical belief was not one protected by the Equality Act.

At the employment tribunal, Employment Judge Hyde had set out a series of Mr Thomas’s social media posts as follows:

a. “the BBC complain that there aren’t enough ethnic minorities on TV and they go and axe Crimewatch…go figure” 19 October 2017;

b. “Soldier was asked where do you stand on Muslims? The windpipe usually does the trick he replied” 14 October 2017;

c. “Imam says “We Hav 2 accept Child Brides” MUSLIM paedophilia is part OF THEIR Culture” 14 February 2016;

d. “Lets “Trump Muslims” in England with a complete temporary ban also“: 8 December 2015; and

d. Various references to the hashtag “BanTheBurka“: August 2015, alongside the suggestion that a woman wearing a headscarf was not welcome in the UK [19].

Employment Judge Hyde had held that the posts demonstrated varying degrees of antipathy towards and disdain for Muslims and various ethnic minority groups. They represented “a snapshot of the views the Claimant had publicly posted and demonstrated his attitudes over a number of years, primarily towards Muslims, but also about what English nationalism meant to him”. Applying the criteria in Grainger plc v Nicholson [2010] ICR 360 incorporated into the Employment Statutory Code of Practice at para 2.59, she had concluded that though Mr Thomas’s belief in English nationalism, including his anti-Islamic views, was genuinely held, though it was a belief and not merely an opinion, and though it addressed substantial aspects of human life and behaviour and attained a certain level of cogency, seriousness, cohesion and importance [20], it was not “worthy of respect in a democratic society” and was incompatible with human dignity and conflicted with the fundamental rights of others. It therefore failed the Grainger test [21].

Mr Thomas appealed on five grounds:

• that EJ Hyde had erred in law by failing to follow the Strasbourg authority of Redfearn v United Kingdom [2013] IRLR 51in favour of the EAT decision in Grainger;
• that the judgment in Grainger had misinterpreted the Convention;
• that EJ Hyde had erred in finding that Mr Thomas had failed to satisfy the fifth Grainger criterion when, in light of Forstater v CGD Europe[2022] ICR 1, his belief easily passed the threshold for protection; and
• that EJ Hyde had erred in her conclusion that his belief was not worthy of protection when she had found that the fundamental rights of others were not infringed.

Sheldon J dismissed the appeal: the claimant’s views were

“of an English nationalism which believes that there is no place in British society for Muslims or Islam itself. In my judgment, that shares features with an ideology such as Nazism which did not see there being any place within German society for Jews. In my judgment, these views are not capable of protection under the Convention as they would offend Article 17” [105].

 In doing so, he echoed

“the comments made by Employment Judge Hyde at paragraph 107 of her judgment: the claimant is not prevented from holding his views, but he is outside of the right to complain that he has been discriminated against in relation to those beliefs in the circumstances covered by the Equality Act” [113].