Employment & Pensions Blog: Is English nationalism a protected belief under the Equality Act 2010?

The last few years has seen a spate of Employment Tribunal claims assessing whether certain philosophical beliefs are capable of protection under the Equality Act 2010. Where a particular belief is protected, employees are protected from being treated less favourably because of those beliefs.  

The cases getting the most headlines over the last few years have been where there is potential for employees to have two conflicting beliefs that are both protected. For example, traditional religious views on homosexuality vs. sexual orientation beliefs, or gender critical beliefs vs. gender identity.

In the recent case of Thomas v Surrey and Borders Partnership NHS, the Employment Appeal Tribunal was required to determine whether English nationalism was a belief capable of protection under the Equality Act 2010. 

Background

Mr Thomas was supplied through a recruitment company to provide consultancy services as an Interim Category Manager for the NHS. The assignment was due to last three months, and two days before it was due to come to an end Mr Thomas was told that his assignment was being terminated because he had failed to disclose an unspent criminal conviction. 

Mr Thomas claimed that the real reason his assignment was terminated was because of his political affiliation with the English Democrats political party (having run for political office between 2004 and 2016), and because of his philosophical belief in English nationalism. 

To qualify as a protected belief under the Equality Act 2010, we know from case law that:

• The belief must be genuinely held. 
• It must be a belief, rather than an opinion or viewpoint based on the present state of information available.
• It must be 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, be not incompatible with human dignity and not conflict with the fundamental rights of others.

Mr Thomas brought a number of claims to the Employment Tribunal, including discrimination on the grounds of his belief in English nationalism. The preliminary question for the Employment Tribunal was whether Mr Thomas’s belief in English nationalism met these criteria. 

The Employment Tribunal’s decision

Mr Thomas argued that he was not inciting violence against other groups, and he was merely representing an opinion on matters that concerned the English constitution. He also pointed out that all four countries in the United Kingdom had nationalist political parties. The Employment Tribunal agreed that – in the general sense - English nationalism is a belief focussed on national identity inspired by the love of English culture, and it is not about common descent or race. English nationalism alone was therefore capable of being a protected belief under the Equality Act 2010.   

However, in Mr Thomas’ case, his specific view of English nationalism strayed into being strongly anti-Islamic. As a result, Mr Thomas’ particular belief was not protected under the Equality Act 2010 because it failed to meet the fifth criterion (above). The Tribunal held that “it was difficult to conclude that the Claimant’s focus on one religion, and ill-informed, disparaging and often recklessly offensive comments were worthy of respect in a democratic society or compatible with human dignity;” and his views were a generalised form of harassment targeting one particular religion causing justifiable offence to others. 

Mr Thomas appealed to the Employment Appeal Tribunal. 

The Employment Appeal Tribunal’s (EAT) decision

The EAT agreed with the Employment Tribunal, and held that:

• Political beliefs, including those related to nationalism, could be protected under the Equality Act – but there are limits. 
• There are two categories of hate speech: 1) the “gravest form” of hate speech that is incapable of being protected in law; 2) “less grave” forms of hate speech that could be protected depending on the circumstances.  
• In Mr Thomas’ case, his beliefs fell into the ‘gravest form’ of hate speech. His view of English nationalism was essentially that there was no place in British society for Muslims or Islam itself.

There was therefore no prospect of Mr Thomas’ beliefs being protected under the Equality Act 2010, and Mr Thomas’ appeal was dismissed.  

Comment

The Equality Act 2010 does not favour any one religious or protected belief over another. For employers and employees, tolerance is key. Tolerance of your employees’/colleagues’ religious and protected beliefs – even if you might disagree with them.  

Whilst Mr Thomas’ belief wasn’t protected, recent case law shows us that the bar for what beliefs are capable of protection is lower than most people think. The EAT’s distinction between ‘gravest” and “less grave” forms of hate speech is important. It re-emphasises that a particular belief can be protected even if it offends or shocks others. Albeit, as with Mr Thomas, there are limits where it is an extreme belief that conflicts with the rights of others and is incompatible with human dignity. 

As always, there is an important distinction between having a particular belief, and how an employee chooses to manifest that belief in the workplace. Just because a particular belief is protected under the Equality Act 2010, it does not give employees the right to deliberately offend or to treat people differently because they happen to have an opposing belief. 

If you have any questions on protected beliefs in the workplace, please get in touch with a member of our Employment Team.