Belief in the higher purpose of public sector broadcasting a step too far?

June 7, 2011

The scope of what constitutes a "philosophical belief" for the purposes of the Equality Act 2010 (and previously the Employment Equality (Religion or Belief) Regulations 2003) and therefore qualifying for protection against discrimination has recently been further expanded following an Employment Tribunal’s ruling that a belief in the "higher purpose of public sector broadcasting" is a philosophical belief (Maistry v BBC (2010)).

In the Maistry case, an ex-BBC employee claimed that he was discriminated against on the grounds of his belief that "public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion". Although the tribunal is yet to determine whether Mr Maistry did indeed suffer discrimination, it has been held that his belief constitutes a "philosophical belief" for the purposes of the discrimination legislation and hence, worthy of protection.

Philosophical belief

In the leading case on what amounts to a "philosophical belief" (Grainger plc and others v Nicholson, (2009)) the Employment Appeal Tribunal sets out the following test which a belief must satisfy in order to qualify for protection:

i)      the belief must be genuinely held;
ii)     it must be a belief, not an opinion or viewpoint based on the present state of information available;
iii)    it must be a belief as to a weighty and substantial aspect of human life and behaviour;
iv)    it must attain a certain level of cogency, seriousness, cohesion and importance; and
v)     it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. 

In Grainger, the EAT decided that a belief in man-made climate change and the existence of a moral duty to live in a manner that would mitigate or avoid this catastrophe satisfied the above test and, therefore, was a philosophical belief. 

In the Maistry case, Mr Maistry was dismissed following a performance management process in October 2010. He subsequently brought a claim for discrimination asserting that his dismissal was the culmination of a continuing act of discrimination on the grounds of his philosophical belief spanning a period of six years. The first thing for the Tribunal to decide was whether the belief asserted by Mr Maistry constituted a "philosophical belief" that qualified for protection under the relevant law.  He had been a journalist in South Africa during the anti-apartheid struggle but was forced to flee after his reports for international news outlets led to police raids on his News Agency. He argued that his personal experience had reinforced his belief that "committed and concerned journalism is an essential component of democracy" and that "public service broadcasting provides a very effective space for enhancing citizenship". 

The Tribunal stated that it had no doubt that Mr Maistry’s belief was genuine and that it satisfied the test set out in Grainger. The judge in that case was influenced by Mr Maistry’s strength of feeling and commented that the asserted belief was clearly of personal significance to him. The Tribunal also held that Mr Maistry’s belief was a belief as opposed to an opinion because there has been commentary from leading academics and the Director General of the BBC on the importance of public sector broadcasting, which indicated that this was more than just a viewpoint. 

The Tribunal further held that Mr Maistry’s belief was not a political belief as it was not based on a political philosophy. Interestingly, however, it then went further to say that even if it were a political belief, that would not mean that it could not qualify for protection. This reasoning is at odds with another recent Tribunal decision where it was held that political beliefs (such as Marxism or Trotskyism) "which involve the objective of the creation of a legally binding structure by power of government regulating others" could not qualify for protection.

What next?

A whole range of beliefs are potentially covered within the protection against discrimination on grounds of philosophical belief and the Maistry case is one of a series of what have called "surprising" cases on this point.  An anti-fox hunting belief (belief in the sanctity of life) and a belief that mediums can communicate with the dead (belief in spiritualism), for example, have also been held to constitute a "philosophical belief".

Some commentators have, however, stated that Maistry is possibly a step too far. The fact that it is a case that has applied the test established in Grainger (which appears to be a tough one to pass), is also significant in that it seems that that test is not as difficult to satisfy as one may have thought. However, it is important to note that each of the decisions are heavily reliant on the facts of the particular case they relate to. Although in the Maistry case, for example, Mr Maistry’s belief in the "higher purpose" of public sector broadcasting was held to be a philosophical belief that qualified for protection given his own personal experience and strength of feeling, it is arguable that not all holders of that belief would necessarily be protected under the legislation. Nevertheless, it will be interesting to see which way future cases on the question of philosophical belief will go in light of the Maistry decision.

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