The protection extended to expression of beliefs is of course far wider than religious beliefs.  Both employers and employees need to understand the considerations that an employment tribunal (“ET”) has in determining whether something is a protected philosophical belief under Section 4 of the Equality Act 2010 within the context of a discrimination claim.

The test for whether something is a belief was established in Grainger plc and others v Nicholson:

1. The belief must be genuinely held;
2. It must be a belief, not an opinion or a viewpoint based on the present state of information available;
3. It must be a belief as to a weighty and substantial aspect of human life and behaviour;
4. It must attain a certain level of cogency, seriousness, cohesion and importance; and
5. 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.

Recent caselaw has shed light on the fifth criterion of the Grainger test (“Grainger 5”). Employees will take comfort from just how difficult it is to show that a belief fails at Grainger 5, but employers will be relieved to see that where their proportionate response is due to the inappropriate manifestation of offensive (but protected) beliefs, rather than the belief themselves, they will not be guilty of discrimination.

Offensive beliefs do not necessarily fail at Grainger 5

Forstater v CGD Europe 2021 concerned the gender-critical beliefs of a consultant. The employment appeals tribunal (“EAT”) held that the gender-critical beliefs were protected despite the alleged offensive nature thereof (the employer’s staff had alleged that tweets posted by the consultant had been transphobic).

This case established that only those beliefs which fall outside of the protections of Articles 9 and 10 of the European Convention on Human Rights (the “Convention”) (freedom of thought and freedom of expression, respectively) by virtue of the Article 17 prohibition of the abuse of Convention rights will be excluded for failing to satisfy Grainger 5.  These are “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” (para. 79) and gender-critical beliefs of the sort expressed by the consultant were held not to meet this threshold as they did not seek to destroy the rights of trans persons (para. 111).

This is a high bar, but not an insurmountable one. In Cave v Open University 2023 it was held that a belief in English nationalism was not afforded protection. This belief did not satisfy Grainger 5 as it sought to destroy the rights of people without the requisite ancestry (para. 45). While this question has not yet been tested by the courts it is likely, therefore, that there are versions of gender critical beliefs (although not the version considered in Forstater) which would fail at Grainger 5.

Inappropriate manifestation as a legitimate ground for action

Even if a protected belief can be shown, employers can take comfort: Wasteney v East London NHS Foundation Trust 2016 shows that a distinction is drawn between cases where the reason for action is the manifestation of the belief, and cases where the reason was the inappropriateness of that manifestation (para. 55). This reflects the distinction between the absolute Convention right to hold a belief and the qualified Convention right to manifest it.

A discrimination claim will only succeed where it can be shown that the action complained of was due to the protected characteristic. Where it is shown that it was the inappropriate manifestation of the belief and not the belief itself that led to the action, the claim may not succeed.

There are a variety of ways in which a belief can be manifested in an inappropriate way:

1. In Page v NHS Trust Development Authority 2021 the EAT held that the action taken by the NHS (dismissing Page) was not because of his beliefs regarding homosexuality but his expression of those beliefs in the national media, and that the action was justified (para. 72) as said expression “risked impairing the willingness of gay people with mental health difficulties to engage with its services” (para. 54).
2. Mackereth v Department for Work and Pensions and others 2022 also concerned gender-critical beliefs. In Mackereth the EAT found the ET had been entitled to dismiss the employee’s claims of discrimination and harassment based on gender critical beliefs. While the beliefs themselves were protected, the employee’s refusal to comply with a policy requiring him to refer to transgender people by their chosen pronouns was an inappropriate manifestation of that belief: there was no direct discrimination as the policy was applied uniformly, and there was no indirect discrimination as the policy was proportionate (para. 53) to achieving a legitimate aim (para. 52) that transgender service users should be treated with respect and in accordance with their rights under the Equality Act 2010.
3. In Wasteney v East London NHS Foundation Trust 2016 the employee had been subject to the disciplinary process not because of her Christian beliefs or because of the manifestation of those beliefs “in voluntary and consensual exchanges with a colleague but because… she subjected a subordinate to unwanted and unwelcome conduct” (para. 65).

This list is inexhaustive but shows that the considerations that an employer may have are both internal and external: considering how the manifestation of a belief impacts other employees as well as external stakeholders.

Proportionality

Even when the reason for the action complained of is the inappropriate manifestation of the belief, Higgs v Farmor’s School 2023 demonstrates that the response by the employer must be justifiable in a human rights sense as proportionate interference with the employee’s rights to achieving a legitimate aim, or the employer may face the potential of a finding of direct discrimination.

In Miller v University of Bristol 2022 it was held at the first instance that a warning for the employee’s unreasonable manifestation of his anti-Zionist beliefs would have been a proportionate response, whereas his dismissal was not and was therefore directly discriminatory.

What does this mean for employers and employees?

The current caselaw suggests a balance in favour of the employee. Grainger 5 offers little protection to employers, and even when it can be shown that disciplinary action was taken in response to an inappropriate manifestation of an employee’s belief, the action is subject to the proportionality test which at this stage seems to favour the employee.

However, this is an evolving area of the law. Cases such as Cave demonstrate that overcoming Grainger 5 is not guaranteed, and Miller may yet be subject to appeal. Given some of the factual similarities it shares with Page a different outcome is not out of the question. Nevertheless, the court is under a duty to balance the legitimate aims of employers with the human rights of employees.