Regular readers of the Legal Corner may recall that a few years ago, I wrote a number of articles about individuals who tried to demonstrate their views were capable of amounting to a ‘philosophical belief’ for the Equality Act 2010.
This Act includes protection from discrimination and harassment in employment and the provision of goods and services, and covers protected characteristics including sex, race disability, religion – but also ‘philosophical belief’. Readers may recall that the courts determined that ‘vegetarianism’ was not a philosophical belief, but that ‘ethical veganism’ was.
When considering whether a belief is capable of protection, it must meet certain criteria: it must be genuinely held, it must not simply be an opinion or viewpoint based on the present state of information available, it must concern 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, and must be not incompatible with human dignity or in conflict with the fundamental rights of others.
In Cave v The Open University, Mr Cave (who was dismissed from his role as a project coordinator as a result of comments he had made on social media which were considered to be racist) sought to persuade the Employment Tribunal that his belief in ‘English Nationalism’ was a philosophical belief that was protected under the Equality Act.
His belief included the fact that ethnicity was paramount and more important than citizenship.
Mr Cave took the view that ancestry went beyond the place where one’s parents and grandparents were born but was not able to provide a date which would be considered as proving sufficient ancestry.
In addition, he considered that someone who was born in this country and converted to Islam would be less ‘British’. Equally, Jewish people were in a distinct ethno-religious group and therefore could not be ‘British’.
If a person was Black, they would be less ‘British’ because ‘Britishness’ depended on ancestry. Mr Cave considered that mass immigration has been “destructive and unhealthy”; he believed that the government should discriminate in favour of ‘native’ people, for instance, in the provision of social housing.
That would mean, for example, that a Black person would be a lower priority than someone who was ancestrally ‘British’.
Applying the criteria set out above, it was clear that Mr Cave did genuinely believe in the issues he had raised, and was able to clearly articulate them. Given the importance of the right of people to live in this country, and access public services, the beliefs expressed were indeed about weighty and substantial matters.
As for whether the belief had a level of cogency, the Employment Tribunal had some concerns about the fact that Mr Cave was not able to articulate how far back a person’s ancestry needed to be considered before determining whether they were ‘British’, but decided that there was just about a sufficient level of cogency to meet the test.
Mr Cave’s claim failed on the final part of the test. The Employment Tribunal found that his belief was not worthy of respect in a democratic society; they decided that it was incompatible with human dignity and conflicted with the fundamental rights of others.
In particular, there was a clear denial of the rights of those without the requisite ancestry to be part of the envisaged ‘nation’. His views were arguably racist. For that reason, his argument failed, and he was not able to pursue his claim that he had been dismissed because of his philosophical belief.
Some will argue that this was manifestly the ‘right’ decision, given the nature of Mr Cave’s views. However, it is also a reminder of the varying beliefs and belief systems which are (or are becoming) prevalent in society, and how these are assessed by the courts.
Safia Tharoo
Barrister, 40 Bedford Row, London
