When asked (as we frequently are) to give a view on the impact of Brexit on UK employment laws, our stock response has been, to date, to say, “very little in the short term and, who knows, in the longer term”. However, in light of a recent decision from the Scottish employment tribunal, reconsidering a prior decision last July, our opinions are changing.
The Equality Act confers protection against discrimination based on 9 protected characteristics, one of which is religion or belief which includes “philosophical beliefs”. What is, or is not, a philosophical belief is a matter for the Tribunals to adjudge and many people have tried and failed. Mr McEleny, a SNP councillor, has argued successfully that his belief in Scottish independence is sufficiently significant to him and his daily life that it is a philosophical belief capable of protection under the Equality Act. Relying on guidance issued by the Employment Appeal Tribunal in Grainger plc and others v Nicholson which considered a belief in climate change to be capable of protection, the Scottish Employment Tribunal concluded that Mr McEleny’s belief in Scottish independence and national sovereignty was sufficiently weighty and profound that it did constitute a philosophical belief notwithstanding its political foundation. Mr McEleny’s case will now proceed to a full hearing to determine whether he had been subjected to unlawful treatment because of his philosophical belief.
We expect many people will find this decision surprising and leads to the obvious question at this time as to whether someone’s firm belief in (or against) Brexit could similarly be capable of amounting to a philosophical belief? Based on this decision, it seems eminently likely that such a belief would qualify for protection, especially if founded on principles of national sovereignty and self-determination.
If you are concerned about how this decision may apply to you / your business, or the impact of Brexit on your workforce more generally, please contact Tiggy or Emma to arrange a further conversation.