Can a belief in climate change be a philosophical belief?

United Kingdom

Last week the employment appeal tribunal upheld a controversial decision of an employment tribunal earlier this year that an individual’s views on climate change are capable of being a philosophical belief.

Background

In March 2009, the employment tribunal held a pre-hearing review to consider a legal question, namely whether a senior executive’s views on climate change were capable of being a belief for the purposes of the Employment Equality (Religion or Belief) Regulations 2003 (the “Regulations”). 

Until made redundant in 2008, Tim Nicholson was employed as head of sustainability by property investment company Grainger Plc.  Mr Nicholson claimed that his beliefs relating to climate change had contributed to his dismissal and that his dismissal was therefore unfair. The principle of this claim was the subject of these legal decisions. We understand that the question of whether he was actually unfairly dismissed is proceeding to a full employment tribunal hearing.

Mr Nicholson claimed that his strongly held philosophical beliefs about climate change and the environment were more than mere opinion, and affected how he lives his life. He claimed that he had not agreed with senior management’s views on climate change and the company’s carbon emissions policy.  He claimed that senior directors had obstructed him from performing his duty to make Grainger plc more socially and environmentally responsible.  For example, when developing the company’s carbon management strategy, he claimed to have been denied access to data to enable him to calculate the company’s carbon footprint.  Mr Nicholson claimed that despite having good written policies on the environment, Grainger plc was not managed in accordance with these policies, noting that executives travelled in “some of the most highly polluting cars on the road” and citing the example of an IT worker being flown from London to Ireland in order to deliver a blackberry.  

In arriving at its decision that Mr Nicholson’s beliefs were capable of protection under the Regulations, the employment tribunal applied the definition of “philosophical belief” set down by the European Court of Human Rights in Campbell and Cosans v United Kingdom [1982] 4 EHRR 293, and the test subsequently set out by the employment appeal tribunal in McClintock v Department of Constitutional Affairs [2008] IRLR 29, namely that a belief must have sufficient “cogency, seriousness, cohesion and importance” and must be “worthy of respect in a democratic society and must not be incompatible with human dignity”. 

Grainger plc appealed the employment tribunal’s decision, arguing that Mr Nicholson’s views were based on fact and science, and were political, and therefore were not a ‘philosophical belief’ within the meaning of the Regulations. 

Mr Justice Burton ruled on the question in the employment appeal tribunal. In his judgment he upheld the decision of the employment tribunal, i.e. that Mr Nicholson’s views were capable of constituting a philosophical belief.  He also set out a number of criteria and limitations on the definition of “philosophical belief”:

  • the belief must be genuinely held

  • it must be a belief and not an opinion or viewpoint based on the present state of information available

  • it must be a 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 and

  • it must be worthy of respect in a democratic society, be compatible with human dignity and not conflict with the fundamental rights of others

Mr Justice Burton also concluded that to be afforded protection under the Regulations a belief must have similar status or cogency to a religious belief, but that it need not be shared with others nor constitute or allude to a fully-fledged system of thought. 

This decision confirms a wide application of the Regulations. 

The decision that views on climate change can constitute a philosophical belief is something that employers will simply have to take on board. It is in principle no different from employers having previously to take on board sex and race discrimination, in the sense that as society’s values change on the big issues then employment must similarly change.

In this particular case one can be left wondering whether the small things can be the trigger for significant change. Of course it was not unlawful for Grainger plc to fly an IT worker from London to Ireland to deliver a blackberry, but was that a good management decision to make in today’s world? It is certainly a factor that adds an element of notoriety to the case.