Mr S Thomas v Surrey and Borders Partnership NHS Foundation Trust and Anor (EAT) [2024] EAT 141
In the above case the Employment Appeal Tribunal found that anti-Islamic English Nationalism was not a protected belief under the Equality Act 2010. Employment Solicitor Erin Garnham looks at the facts of the case and the decisions made by both the ET and EAT ruling against the claimant.
Brief facts
Mr Thomas was employed through an agency as a consultant for the NHS from 30 April 2018 to 26 July 2018. On 24 July 2018 he was dismissed by the agency as it was found he had failed to declare an unspent conviction.
Mr Thomas believed this was not the real reason for his dismissal, instead believing that he had been dismissed because of his political affiliation to the English Democrats party, for whom he had stood for political office previously. Mr Thomas brought a claim of discrimination on the grounds of religion and belief. The Respondents denied this was the reason for his dismissal but also denied that his beliefs were protected by the Equality Act. A preliminary hearing was held to determine if the claimant’s beliefs were a protected characteristic.
Mr Thomas contended that his belief in English Nationalism should be protected as he invested time, money, his personal image and his name in promoting that idea. He provided a witness statement where he confirmed that he believed in national identity, that those that choose to live in England should adopt an English identity.
The Tribunal applied the Grainger Criteria, which set out the requirements for a religion or belief to be protected under the Equality Act. The criteria state;
- The belief must be genuinely held.
- Be a belief and not an opinion or viewpoint based on the present state of information available.
- Be a belief as to a weighty and substantial aspect of human life and behaviour.
- Attain a certain level of cogency, seriousness, cohesion and importance.
- Be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
The Employment Tribunal decision
The Employment Tribunal confirmed that if his stated views constituted the extent of Mr Thomas’ beliefs, they would have been afforded protection under the Equality Act; however, it was subsequently discovered during cross examination and in his social media posts, that his witness statement was not a true reflection of his beliefs. In fact, Mr Thomas had made regular posts that would be considered anti-Islamic in nature. These included that Islam should be banned from England and that Muslims should be forcibly removed from the country.
The Employment Tribunal found that his anti-Islamic views were very much part of his belief in English Nationalism and because of this, the fifth criterion of the Grainger Criteria was not satisfied. The fifth Grainger criterion was designed to prevent a racist or homophobic political philosophy.
Ultimately, the Tribunal concluded that English Nationalism was capable of being a protected belief, but anti-Islamic views held as part of this belief prevented it from being a protected in this case.
The Appeal
Mr Thomas sought to appeal the decision on a number of grounds, one being that the Grainger criteria should not have been solely relied upon and that the Tribunal had erred in law by stating that the fundamental rights of others were not infringed, but yet went on to conclude that his belief was not worthy of protection.
The Employment Appeal Tribunal decision
The EAT, agreed with the Tribunal’s decision and dismissed the appeal. Although there had been an inconsistency in the Tribunal’s reasoning, it did not amount to an error in law. They found that the claimant is not prevented from holding his views, but he is outside the right to complain that he has been discriminated against in relation to those beliefs.
Conclusion
When we consider if an individual’s religion or belief amounts to a protected characteristic, the majority of the Grainger criteria are easily satisfied. It is usually the final criterion where the claim falls down. This does not mean that offensive or shocking beliefs cannot be protected, but the Tribunal will seek to ensure that beliefs that are akin to the likes of Nazism, that would be excluded from protection under Article 17 of the Human Rights Act would not be deemed worth of respect in a democratic society.
Of particular interest here is that the EAT said that the Forstater ruling had not – as Thomas argued – effectively “lowered the bar” for the fifth Grainger criterion.
The EAT went further and suggested that Forstater might need to be revisited, in so far as it says that only extreme beliefs such as Nazism would fall foul of protection; certain other types on intolerance may not be protected, either – though EAT didn’t need to rule on that, so the point is not yet firmly decided.
We were concerned that Forstater might be seen as extending protection for beliefs too far; it seems EAT may have a similar view. Watch this space.
Author: Erin Garnham, employment
