Global Warning for Employers?

An Employment Appeal Tribunal is currently considering a case where the outcome could have lasting implications for employers and create the potential for future discrimination cases that focus on lifestyle choices and religious beliefs.

It involves an appeal by the employer against an earlier ruling in March this year that an employee’s beliefs about climate change could amount to a religious belief and that he had therefore been the victim of unlawful discrimination when he was made redundant from his position.

If the appeal by the company is rejected, it could have far reaching implications for all employers.
Companies across the UK would be at risk of claims for discrimination from employees who argue that one of the factors in a decision to dismiss or select for redundancy was related to their particular choice of lifestyle or “religious or philosophical belief”.

Mr Nicholson was Head of Sustainability at Grainger PLC, a residential property investment company. He was first employed as a Surveyor and was made redundant on 31 July 2008. The company argued that his was a genuine redundancy whereas Mr Nicholson claimed that he had been unfairly dismissed and discriminated against because of his strong beliefs about climate change and the environment.

Currently UK discrimination law protects individuals from being dismissed or suffering victimisation or harassment in the workplace by reason of their “religious or philosophical belief”. This law has been in force since 2003 and to a large extent mirrors other legislation dealing with discrimination on grounds of, for example, sex, race and disability.

Claims can be brought not only against the employer but also against individual managers who are alleged to have carried out conduct amounting to discrimination. In redundancy cases therefore, this could include all managers who were involved to any extent in the selection process.

Indeed, in Mr Nicholson’s case, the claim was brought not only against the company but six individuals employed by the company and who of course may all need representation - which only adds to the costs and administrative burden of dealing with such claims.

At an earlier preliminary hearing in March, the Judge agreed with Mr Nicholson that his beliefs about climate change did amount to a philosophical belief and therefore fell within the law. The Judge took into account the claim by Mr Nicholson that was expressed as follows:-

“I have a strongly held philosophical belief about climate change and the environment. I believe we must urgently cut carbon emissions to avoid catastrophic climate change. It is not merely an opinion but a philosophical belief which affects how I live my life…for example I no longer travel by airplane, I have eco-renovated my home, I try to buy local produce, I have reduced my consumption of meat, I compost my food waste, I encourage others to reduce their carbon emissions and I fear very much for the future of the human race, given the failure to reduce carbon emissions on a global scale.”

The Judge agreed that these beliefs “commanded the highest respect in democratic societies as can be seen from the conduct of modern global politics”.

In an earlier case, the Appeal Tribunal ruled that a view relating to adoption by same sex couples held by a Magistrate who did not wish to rule on such matters did not fall within the definition of belief. The Judge in Mr Nicholson’s case distinguished his case from that of the Magistrate in the earlier case because he had “settled views about climate change and acts upon those views in the way in which he leads his life”. In other words, his belief went beyond a mere opinion.

Paul Grindley, Head of the Employment Team at Yorkshire Law firm Keeble Hawson commented:
“If successful, Mr Nicholson’s case will proceed to a full trial - although he will still have to prove that he was in fact made redundant because of his belief and not for some other perfectly valid reason. This may of course prove a hurdle too far but it would nevertheless establish the groundwork for further claims from employees who are dismissed, or otherwise badly treated at work because of their particular lifestyle choices. This could include for example, vegetarians, pacifists and atheists."

“In the current economic climate, employers could be forgiven for thinking that they have enough to contend with, without a further extension of discrimination laws which many believe have placed employers in sometimes impossible situations which were never envisaged when the laws were passed."

W. keeblehawson.co.uk