Grainger plc v Nicholson - belief in climate change disaster is capable of being a belief within the meaning of the Religion and Belief Regulations

A Mr Nicholson is claiming that his dismissal on grounds of redundancy was an act of discrimination contrary to the Employment Equality (Religion and Belief) Regulations 2003 , the "belief" in question being that "mankind is headed towards catastrophic climate change".  A judge in the EAT has agreed that the case can proceed to a hearing.

Belief is defined by the Employment Equality (Religion and Belief) Regulations 2003 SI 2003/1660 (as amended by Equality Act 2006 s.77) as "any religious or philosophical belief".  At a pre-hearing review in March 2009 an employment judge at the Central London Employment Tribunal concluded that Mr Nicholson's conviction that climate change was the world's most important environmental problem amounted to a "philosophical belief" within the meaning of the regulations. 

Grainger plc, the employer, argued that this was not a "philosophical belief" within the meaning of the regulations and therefore that the regulations were irrelevant.  Grainger appealed to the EAT on this preliminary point. 

Dinah Rose QC for Mr Nicholson argued there that "The philosophical belief in this case is that mankind is headed towards catastrophic climate change and that, as a result, we are under a duty to do all that we can to live our lives so as to mitigate or avoid that catastrophe for future generations". 

John Bowers QC for the company argued that Ms Rose was describing a scientific claim, not a philosophical belief.  He argued that Mr Nicholson's assertion is "a scientific view rather than a philosophical one. Philosophy deals with matters that are not capable of scientific proof.......What Mr Nicholson asserts is a scientific claim that if we don't urgently cut carbon emissions, we will not avoid catastrophic climate change. There is nothing philosophical about that".

The employer and Mr Bowers have lost - but only on points. They have lost this round in the EAT but have not yet lost the fight. The EAT (Burton J. sitting alone) has modified, but not overruled, the employment judge's decision and has agreed that the case can go to trial on the basis that “the asserted belief held by the Claimant upon which he bases his claim of discrimination is capable of being a belief for the purposes of” the 2003 Regulations. 

The EAT made it clear that if and when the case comes before a tribunal to be heard on its merits, as it can now do, Mr Nicholson will need to provide (i) evidence directed to the genuineness of his belief;  (ii) evidence that it is a belief rather than "an opinion or viewpoint based on the present state of information available" and (iii) evidence from which the Tribunal could conclude that his dismissal was on the grounds of that belief.

The EAT judge said Mr Nicholson would also have to show that his belief is one concerning "a weighty and substantial aspect of human life and behaviour" which attains "a certain level of cogency, seriousness, cohesion and importance" and which is "worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others".

As a matter of law, there is particular importance in the distinction drawn by the EAT judge between "philosophical belief" on the one hand (which is covered by the 2003 regulations) and "an opinion or viewpoint based on the present state of information available" (which is not covered).  This is significant because in an earlier case a magistrate who was unhappy about placing children with same sex couples failed in his attempt to claim discrimination contrary to the 2003 regulations - it seems he failed essentially because what he claimed to be a "belief" was in fact no more than an "opinion" or "viewpoint" (see McClintock v DCA EAT [2008] IRLR 29).

See also BBC News 3rd November 2009 "Eco-employee wins bid to appeal" (and perhaps also a YouTube video of a lecture by Professor Ian Plimer on "Environmentalism is the new religion" (19th August 2008)