How far does the definition of a ‘philosophical belief’ extend under the Equality Act?
Forstater v CGD Europe & others is the latest in a string of cases which are developing the law in this area. In the case, Maya Forstater worked as a consultant for the Centre for Global Development (CGD). She published tweets on her personal twitter account expressing her views that a person could only be male or female and that this it was not possible for a human being to change their biological sex. She said that, as a result of expressing these views on twitter, her contracting relationship with CGD was not renewed and that a promise to make her a full-time employee was reneged upon. Ms Forstater made a claim to the Employment Tribunal of discrimination on the
grounds of her belief.
As is normal in cases challenging the scope of religion and belief under the Equality Act, the Employment Tribunal held a preliminary hearing to decide whether the belief was, in theory, capable of being protected under the Act. It’s been established in earlier cases (and since incorporated within the Equality & Human Rights Commission’s code) that, in order to be capable of protection, a philosophical belief must:
- Be genuinely held
- Be a belief, not an opinion or viewpoint based on the present state of information available
- Concern a weighty and substantial aspect of human life and behaviour
- Have a certain level of cogency, seriousness, cohesion and importance (although the requirements here are modest)
- Be worthy of respect in a democratic society which is not incompatible with human dignity and not in conflict with the fundamental rights of others.
In Ms Forstater’s case, they found that, although her belief satisfied the first 3 of those requirements, the element of “misgendering” was incompatible with the final requirement and could therefore not be protected under the Equality Act.
In another recent case, Gray v Mulberry Company, the Court of Appeal decided that an employee who was dismissed for refusing to sign up to the company’s standard employment terms assigning copyright in designs claim to the handbag company had not been discriminated against on the basis that her belief in the “statutory human or moral right to own the copyright in one’s own creative works” was not a philosophical belief under the Equality Act. Also in Connisbee v Crossley Farms, Mr Connisbee’s vegetarianism didn’t give him protection from discrimination on the basis that it was a lifestyle choice lacking the relevant weight and cogency to amount to a protected belief.
We’re expecting decisions in 2020 on whether ethical veganism and Brexit are philosophical beliefs for the purposes of the Equality Act (in Casamitjana v League Against Cruel Sports and McEleny v Ministry of Defence respectively). Watch this space!
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