A recent tribunal decision has held that an employee’s beliefs about the best way to eliminate racism (that critical race theory, described by him as the ‘woke’ approach to racism, is misconceived and divisive, and that the cause of racial equality is best advanced not through separatism and segregation but by valuing people based on character rather than race) amounted to a protected philosophical belief under the Equality Act 2010. Although fact-specific and not binding on other tribunals, the ruling does highlight the importance of employers remembering that employees on both sides of controversial topics may benefit from protection of belief under the Equality Act 2010. A nuanced and balanced approach, taking into account the factors set out recently by the Employment Appeal Tribunal in Higgs (discussed here), will be key when dealing with the expression of such beliefs.
To be protected, a belief must be (1) genuinely held, (2) not merely an opinion or viewpoint, (3) concern a weighty and substantial aspect of human life and behaviour, (4) be sufficiently cogent, serious, cohesive and important, and (5) worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others (the Grainger v Nicholson tests). At a preliminary hearing, the tribunal rejected the employer’s arguments that tests 2 and 4 were not satisfied. The judge considered that the claimant’s beliefs were grounded in a philosophical system, having been formulated through extensive reading and backed up by his own lived experience (including as a youth worker in Brixton, and marrying and having children with a Black woman). The fact that his witness statements referred to his beliefs as views or opinions was merely semantics; the beliefs were deeply held and carefully considered and they clearly formed an important part of the claimant’s identity affecting how he lived his life. The tribunal will now proceed to hear his discrimination claim, which concerns his posts on the workplace message board Yammer expressing those views and criticising Black Lives Matter. Some colleagues had found them offensive and complained that the posts promoted racist ideas; the employer had dismissed these complaints but instructed Mr Corby to remove the posts.
In contrast, the employee’s belief that it is unhelpful to view social problems through feminist eyes did not satisfy the test to be a protected belief. His view was based on a very narrow foundation, namely an article made by one feminist which he interpreted as suggesting that high male suicide rates were unimportant, and he was unable to articulate in more detail the basis of his views. The tribunal therefore considered that this was an opinion rather than a philosophical belief.