Was an individual’s belief in English nationalism, which included anti-Muslim beliefs, protected under the Equality Act?
No, held the Employment Appeal Tribunal in the case of Thomas v Surrey and Borders Partnership.
Background
In this case, Mr Thomas was an Agency Worker engaged by the Surrey and Borders Partnership NHS Foundation Trust for just under three months in 2018, to deliver consultancy services.
Shortly before the expiry of his contract, his assignment was terminated due to his failure to disclose an unspent conviction. However, Mr Thomas claimed that the real reason was because of his political affiliation with the English Democrats political party, and his philosophical belief in English nationalism. He brought an Employment Tribunal (ET) claim for discrimination on the grounds of religion or belief under the Equality Act 2010.
Applicable law
Religion or belief is a protected characteristic under the Equality Act 2010. Section 10 of the Equality Act defines "belief" as any religious or philosophical belief, and a reference to belief includes a reference to a lack of belief.
Article 9 of the European Convention on Human Rights (ECHR) states:
“Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
Case law has provided guidance on the requirements for a religious or philosophical belief to qualify for protection under the ECHR which are summarised as follows:
- The belief must be genuinely held.
- It must be a belief, 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, not be incompatible with human dignity and not conflict with the fundamental rights of others.
Decision
The ET found that Mr Thomas' belief in English nationalism could have been capable of being protected by section 10 of the Equality Act on its own. However, it found evidence that Mr Thomas held anti-Islamic views, as part of that belief, including:
- The use of the hashtag "#RemoveAllMuslims" in a social media post.
- His comments (in another ET case) that Islam should be banned from England unless it were "Anglicised" and "toned down".
- A social media post saying, "This is why Japan had the sense to ban Islam."
The ET concluded that these were examples of Mr Thomas’ “disdainful and prejudiced focus on Islam”, which showed that his belief was more than offensive, shocking or disturbing, and therefore did not satisfy the fifth criterion. This prevented his belief in English nationalism from being a protected belief under section 10.
The Employment Appeal Tribunal rejected Mr Thomas’ appeal, finding that his belief fell within the scope of Article 17 of the ECHR which provides that no person may seek to rely on a Convention right to protect activities or acts aimed at the destruction of any Convention rights or freedoms of others.
Our view
Christine Jamieson, Senior Paralegal in our Employment team comments:
“Case law has held that the only beliefs that would be excluded from ECHR protection by Article 17 are those that would be considered not to be "worthy of respect in a democratic society" such as “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 in the gravest of forms".
“This case clearly found that Mr Thomas’ particular beliefs in respect of Muslims and Islam fell within the scope of Article 17 of the ECHR and were not protected as a result.
“However, the Judge, having analysed previous European Court of Human Rights decisions, commented that there appeared to be some conflict between those decisions and Article 17 ECHR, and there may be more to come, including arguments that Case Law in this particular area is too narrow. This means that where the line should be drawn between protected and unprotected beliefs may be the subject of further argument.”
