On 5 September 2024, the Employment Appeal Tribunal (EAT) handed down its judgment in the case of Thomas v Surrey and Borders Partnership NHS Foundation Trust. The appeal examined whether the claimant’s belief in English nationalism constituted a 'protected belief' under the Equality Act 2010.
In this article, we outline the details of the case, the legal criteria for defining a protected belief, and whether English nationalism qualifies as such under UK law.
Mr Thomas, engaged through an employment agency, provided consultancy services to Surrey and Borders Partnership NHS Foundation Trust for a brief period, from 20 April 2018 to 26 July 2018. On 24 July 2018, Mr Thomas was informed by the agency that his assignment had been terminated reportedly due to the discovery of an unspent conviction, which he had failed to disclose.
Mr Thomas felt that the reason given for terminating his assignment was a sham, and that the real reason was his beliefs in English Nationalism following his political activities as a member of the English Democrats. He brought a claim against the trust, alleging discrimination on the grounds of religion or belief under the Equality Act 2010.
One of the characteristics protected against discrimination under the Equality Act 2010 is a person’s religion or philosophical belief.
In the earlier case of Grainger plc v Nicholson, the EAT established criteria for determining whether a belief qualifies as a 'philosophical belief' protected under the Equality Act 2010. They held that to be protected, a philosophical belief must:
The EAT had to consider the issue of whether the Mr Thomas’ English nationalist beliefs met the criteria of a philosophical belief protected against discrimination under the Equality Act 2010.
In doing so, it examined evidence of the nature of his beliefs, which had previously been considered by Leeds Employment Tribunal. Extensive social media posts were unearthed disclosing unsavoury anti-Muslim tweets and Facebook posts, including the #removeallmuslims. He also advocated the use of armed violence against migrants and the forcible deportation of Muslims from the UK. The original tribunal had found that these views were integral to Mr Thomas’ beliefs. However, the tribunal had also found that “No matter how objectionable, the claimant’s expressed anti-Islamic views did not amount to inciting violence”. Despite this, it found that his English nationalist beliefs met the first four criteria of the Grainger test, but not the fifth. It was this that was subject to appeal to the EAT.
The EAT examined the tribunal’s decision in light of the European Convention on Human Rights (ECHR). Article 17 of the ECHR prohibits individuals from claiming convention protections if doing so would enable actions aimed at destroying the rights and freedoms enshrined in the convention.
This is consistent with the fifth Grainger criterion which is intended to limit protection to beliefs that do not promote actions incompatible with human dignity or infringe upon others' fundamental rights. However, there is a high threshold to meet here to not meet the fifth criterion. Previous leading case law was quoted “it is not enough that a belief or a statement has the potential to ‘offend, shock or disturb’”…"only if the belief involves a very grave violation of the rights of others, tantamount to the destruction of those rights, would it be one that was not worthy of respect in a democratic society”.
However, the EAT recognised that there is still a level of uncertainty in the law as to whether the threshold for losing the protection under the Equality Act is extreme and exceptional cases limited to where the beliefs stir up hatred or violence, or whether the wider view that beliefs that espouse intolerance and discrimination also fall outside of the protection.
The EAT declined to provide further clarification on this point as, given Mr Thomas’ belief included the forcible removal of Muslims from the UK, his belief was not worthy of protection even with the stricter approach.
There is a high threshold to meet here to not meet the fifth criterion. A line appeared to be drawn between a belief in forcible deportation of non-whites not being protected, because it was likely to espouse hatred/incitement to violence, compared to the promotion of intolerance which didn’t of itself fall wholly outside the scope of protection.
The effect of this finding was that whilst Mr Thomas was entitled to hold whatever beliefs he chose, he could not then rely on those beliefs for protection against discrimination under the Equality Act 2010.
This ruling is an interesting demonstration of how tribunals will balance different rights and protections, particularly between the Equality Act and the ECHR. In light of the recent political climate and events, the decision will no doubt come as a great relief to many, including Muslims. However, it should not be taken as showing that English nationalism is not a protected belief under the Equality Act 2010, and it would be dangerous for employers to treat it in such a way.
The decision does demonstrate that while individuals may hold controversial or unpopular views, not all beliefs will attract protection under discrimination law. The protection is only afforded when those beliefs do not conflict with the fundamental rights of others or human dignity. This may give some confidence to employers when dealing with employees with a philosophical belief which crosses the line into hatred and incitement to violence. We will need to wait for further case law to clarify whether this also encompasses the slightly milder form of intolerance and discrimination.
For more information, please contact our employment law team.
