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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Grainger Plc & Ors v. Nicholson [2009] UKEAT 0219_09_0311 (3 November 2009) URL: https://www.bailii.org/uk/cases/UKEAT/2009/0219_09_0311.html Cite as: [2010] ICR 360, [ 2010 ] 2 All ER 253, [2009] UKEAT 0219_09_0311, [2009] UKEAT 219_9_311, [2010] IRLR 4 |
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At the Tribunal | |
On 7 October 2009 | |
Before
THE HONOURABLE MR JUSTICE BURTON
(SITTING ALONE)
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APPELLANT |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR JOHN BOWERS (One of Her Majesty's Counsel) Instructed by: Messrs Grange Wintringham Solicitors St Mary's Chambers West St. St Mary's Gate Grimsby North East Lincolnshire ON31 1LD |
For the Respondent | MISS DINAH ROSE (One of Her Majesty's Counsel) and MR IVAN HARE Instructed by: Messrs Bindmans LLP Solicitors 275 Gray's Inn Road London WC1X 8QB` |
SUMMARY
RELIGION OR BELIEF DISCRIMINATION
A belief in man-made climate change, and the alleged resulting moral imperatives, is capable, if genuinely held, of being a philosophical belief for the purpose of the 2003 Religion and Belief Regulations. The belief must be of a similar cogency or status to a religious belief, the ECHR jurisprudence is directly material and the limitations on the concept and extent of a philosophical belief can be derived from that, without the need to place any additional limitation on the nature or source of the belief.
THE HONOURABLE MR JUSTICE BURTON
"2. I have a strongly held philosophical belief about climate change and the environment. I believe we must urgently cut carbon emissions to avoid catastrophic climate change.
3. It is not merely an opinion but a philosophical belief which affects how I live my life including my choice of home, how I travel, what I buy, what I eat and drink, what I do with my waste and my hopes and my fears. For example, I no longer travel by airplane, I have eco-renovated my home, I try to buy local produce, I have reduced my consumption of meat, I compost my food waste, I encourage others to reduce their carbon emissions and I fear very much for the future of the human race, given the failure to reduce carbon emissions on a global scale."
"The Claimant has not been cross-examined on that evidence, but it is doubtful whether such cross-examination would be permitted, since it is not the function of the Tribunal to examine the beliefs of Claimants appearing before it. Instead it is the function of the Tribunal to analyse those beliefs to see whether they engage relevant legislation."
"I distinguished the Claimant's case from that of Mr McClintock [in McClintock v Department of Constitutional Affairs [2008] IRLR 29] because the Claimant has settled views about climate change, and acts upon those views in the way in which he leads his life. In my judgment, his belief goes beyond mere opinion, such as might be held on some aspects of climate change, such as whether it is environmentally desirable to travel by air."
If such be necessary to be established, it was plainly not open to the Employment Judge to do so without cross-examination or inquiry.
"(1) For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if … (a) on the grounds of the religion or belief of B … A treats B less favourably than he treats or would treat other persons."
"(1) In these Regulations –
i. "religion" means any religion,
ii. "belief" means any religious or philosophical belief,
iii. a reference to religion includes a reference to lack of religion, and
iv. a reference to belief includes a reference to lack of belief."
"… It was felt that the word 'similar' added nothing and was, therefore, redundant. This is because the term 'philosophical belief' will take its meaning form the context in which it appears; that is, as part of the legislation relating to discrimination on the grounds of religion or belief.
Given that context, philosophical beliefs must therefore always 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 [a reference to a Camelot-style Order in the cult film Star Wars]. I hope that this provides some assurance on the change of the definitions of 'religion or belief' that we have adopted, and I hope that the noble Baroness will therefore feel content to withdraw the amendment" [which indeed ensues.]
(i) How far, if at all, the belief said to qualify for protection under the Regulations is required to be similar to a religious belief?
(ii) What limits (if any) should be placed upon the words "philosophical belief"? Mr Bowers submits that there are or should be at least three limits:
(a) it must be a 'settled' belief, part of a system of beliefs; and/or
(b) it must be a philosophical belief and not a political belief, one based upon political opinions, such as, for example, fascism; and/or
(c) it must not be a scientific belief based upon conclusions drawn from science and resulting from research or the gathering of information.
(iii) Whether the authorities in relation to the European Convention on Human Rights ("ECHR"), Article 9 and Article 2 of Protocol 1 in particular, are of relevance, or indeed persuasive or conclusive in this field. This question arises in this context because the reference by the Attorney General to "case law" in the citation from Hansard above derives from the words of the judgment of the European Court of Human Rights in Campbell and Cosans v United Kingdom [1982] 4 EHRR 293, a case in which the complainants successfully alleged that the system of corporal punishment in Scottish state schools offended their philosophical convictions under Article 2 of Protocol 1 of the ECHR.
"The philosophical belief is that mankind is heading towards catastrophic climate change and therefore we are all under a moral duty to lead our lives in a manner which mitigates or avoids this catastrophe for the benefit of future generations, and to persuade others to do the same."
(i) there is a field (according to the Internet Encyclopaedia of Philosophy, an extract from which she produced) called Environmental Ethics, whose job is said to be to outline our moral obligations in the face of serious environmental concerns.
(ii) if an applicant had a similar belief that mankind is heading towards economic catastrophe, with the consequential asserted moral duty, then that too, she would submit, would be capable of amounting to a philosophical belief for the purposes of the Regulations.
(i) Article 9(1): "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice, and observance." It can be seen that the belief in question is not necessarily a philosophical belief.
(ii) Article 14 (the general prohibition of discrimination) reads as follows:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
This protects (but only by reference to some other Article to which this must be ancillary) discrimination on grounds of political or other opinion.
(iii) Article 2 of Protocol 1 protects the right to education, and provides that "in the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."
(i) She points out that the Member States' obligation, by reference to Article 1, is as to the purpose of the Directive being the combating of discrimination "on the grounds of religion or belief". There is thus no limitation to any kind of belief, and thus, putting it at its lowest, no warrant for the UK legislature to limit the kind of belief to be protected.
(ii) She refers (as did the Employment Judge) to the fact that the ECHR is prayed in aid as a source in both Recitals (1 and 4). Mr Bowers notes that the original draft of Recital (1) was amended to include reference to the "constituted traditions common to the Member States", but that does not seem to me to do anything more than emphasise that the ECHR enshrines principles already familiar to e.g. the UK (see also Kremzow v Austria [1997] 3 CMLR 1289 at 1298 paragraph [14]), and certainly not to undermine the causal connection.
"As the tribunal in our view correctly observed, to constitute a belief there must be a religious or philosophical viewpoint in which one actually believes. It is not enough to have an opinion based on some real or perceived logic or based on information or lack of information available. Mr McClintock had not as a matter of principle rejected the possibility that single sex parents could ever be in a child's best interests; he felt that the evidence to support this view was unconvincing, but did not discount the possibility that further research might reconcile the conflict which he perceived to exist."
He did not therefore have, for example, a fixed homophobic belief.
"27. However, by s3 of the Human Rights Act 1998, it is incumbent on domestic courts to construe domestic laws compatibly with Convention rights, and therefore the same (or at least no less favourable) approach must be adopted to the concept of religion and belief in the 2003 Regulations."
"The Government also contested the conclusion of the majority of the Commission that the applicants' views on the use of corporal punishment amounted to 'philosophical convictions', arguing, inter alia, that the expression did not extend to opinions on internal school administration, such as discipline, and that, if the majority were correct, there was no reason why objections to other methods of discipline, or simply to discipline in general, should not also amount to 'philosophical convictions'.
In its ordinary meaning the word 'convictions', taken on its own, is not synonymous with the words 'opinions' and 'ideas', such as are utilised in Article 10 of the Convention, which guarantees freedom of expression; it is more akin to the term 'beliefs' (in the French text: 'convictions') appearing in Article 9 - which guarantees freedom of thought, conscience and religion - and denotes views that attain a certain level of cogency, seriousness, cohesion and importance.
As regards the adjective 'philosophical', it is not capable of exhaustive definition, and little assistance as to its precise significance is to be gleaned from the travaux préparatoires. The Commission pointed out that the word 'philosophy' bears numerous meanings: it is used to allude to a fully-fledged system of thought or, rather loosely, to views on more or less trivial matters. The Courts agrees with the Commission that neither of these two extremes can be adopted for the purposes of interpreting Article 2: the former would too narrowly restrict the scope of a right that is guaranteed to all parents and the latter might result in the inclusion of matters of insufficient weight or substance.
Having regard to the Convention as a whole, including Article 17, the expression 'philosophical convictions' in the present context denotes, in the Court's opinion, such convictions as are worthy of respect in a 'democratic society' and are not incompatible with human dignity; in addition, they must not conflict with the fundamental right of the child to education, the whole of Article 2 being dominated by its first sentence.
The applicants' views relate to a weighty and substantial aspect of human life and behaviour, namely the integrity of the person, the propriety or otherwise of the infliction of corporal punishment and the exclusion of the distress which the risk of such punishment entails. They are views which satisfy each of the various criteria listed above; it is this that distinguishes them from opinions that might be held on other methods of discipline or on discipline in general."
"23. Everyone, therefore, is entitled to hold whatever beliefs he wishes. But when questions of 'manifestation' arise, as they usually do in this type of case, a belief must satisfy some modest, objective minimum requirements. These threshold requirements are implicit in Article 9 of the European Convention and comparable guarantees in other human rights instruments. The belief must be consistent with basic standards of human dignity or integrity. Manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection. The belief must relate to matters more than merely trivial. It must possess an adequate degree of seriousness and importance. As has been said, it must be a belief on a fundamental problem. With religious belief this requisite is readily satisfied. The belief must also be coherent in the sense of being intelligible and capable of being understood. But, again, too much should not be demanded in this regard. Typically, religion involves belief in the supernatural. It is not always susceptible to lucid exposition or, still less, rational justification. The language used is often the language of allegory, symbol and metaphor. Depending on the subject matter, individuals cannot always be expected to express themselves with cogency or precision. Nor are an individual's beliefs fixed and static. The beliefs of every individual are prone to change over his lifetime. Overall, these threshold requirements should not be set at a level which would deprive minority beliefs of the protection they are intended to have under the Convention …
24. This leaves on one side the difficult question of the criteria to be applied in deciding whether a belief is to be characterised as religious. This question will seldom, if ever, arise under the European Convention. It does not arise in the present case. In the present case it does not matter whether the claimants' beliefs regarding the corporal punishment of children are categorised as religious. Article 9 embraces freedom of thought, conscience and religion. The atheist, the agnostic, and the sceptic are as much entitled to freedom to hold and manifest their beliefs as the theist. These beliefs are placed on an equal footing for the purpose of this guaranteed freedom. Thus, if its manifestation is to attract protection under Article 9 a non-religious belief, as much as a religious belief, must satisfy the modest threshold requirements implicit in this article. In particular, for its manifestation to be protected by Article 9 a non-religious belief must relate to an aspect of human life or behaviour of comparable importance to that normally found with religious beliefs. Article 9 is apt, therefore, to include a belief such as pacifism: Arrowsmith …. The position is much the same with regard to the respect guaranteed to a parent's 'religious and philosophical convictions' under Article 2 of the First Protocol: see Campbell and Cosans …"
(i) The belief must be genuinely held.
(ii) It must be a belief and not, as in McClintock, an opinion or viewpoint based on the present state of information available.
(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.
(v) 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 (paragraph 36 of Campbell and paragraph 23 of Williamson).
"Accordingly, it is not necessary for a belief to be shared by others in order for it to be a religious belief, nor need a specific be a mandatory requirement of an established religion for it to qualify as a religious belief. A person could, for example, be part of the mainstream Christian religion, but hold additional beliefs which are not widely shared by other Christians, or indeed shared at all by anyone."