In the recent case of Mr A Cave v The Open University, the Claimant brought forward a claim for discrimination based on religion or belief after being dismissed from his position as Acting Project Coordinator by his employer, The Open University. The Employment Tribunal was tasked with determining whether Mr Cave’s self-described belief in “English Nationalism” fell within the definition of a philosophical belief under Section 10 of the Equality Act 2010. After careful consideration of the evidence and legal arguments presented, the Tribunal issued a reserved preliminary hearing judgment dismissing Mr Cave’s claim for discrimination on the basis that English Nationalism is not a “philosophical belief”.
The central issue at hand was whether Mr Cave’s belief in English Nationalism met the criteria set out in Grainger PLC v Nicholson. The burden of proof rested on Mr Cave to demonstrate that his belief qualified as a protected characteristic under the Equality Act 2010.
During the hearing, Mr Cave expressed his belief in English Nationalism, emphasising his concerns about mass immigration and what he perceived as a pernicious ideology that promotes white guilt. He contended that nations should be defined by shared heritage including language, culture, faith, and ancestry. Additionally, he asserted that ethnicity and nationality were synonymous, and citizenship did not carry the same weight as ancestral ties.
The Tribunal carefully examined Mr. Cave’s beliefs in light of the Grainger criteria and recent case law, including Forstater v CGD Europe and others. The Grainger criteria stipulate that a philosophical belief must be genuinely held, weighty, substantial, coherent, serious, and worthy of respect in a democratic society without conflicting with the fundamental rights of others.
The Tribunal concluded that Mr Cave’s belief in English Nationalism did not meet the required standards for protection under the Equality Act. They held that the belief was incompatible with human dignity and conflicted with the fundamental rights of others. Furthermore, they found that Mr Cave’s views on ethnicity and nationality could lead to discrimination and were not in line with a democratic society’s values.
This judgment highlights the challenges in defining and determining philosophical beliefs in the context of discrimination claims. It reinforces the importance of considering human rights principles, particularly those outlined in the European Convention on Human Rights, when assessing the worthiness of a belief in a democratic society.
In this instance, the Employment Tribunal ruled that Mr Cave’s belief in English Nationalism did not meet the criteria for protection under the Equality Act. The judgment emphasises the need for philosophical beliefs to be coherent, serious, and worthy of respect in a democratic society, while not conflicting with the fundamental rights of others. This case serves as a reminder of the complexities involved in determining the boundaries of protected beliefs in discrimination cases.
Mark Lafferty is a senior employment law solicitor at DPH Legal. Mark acts in the employment tribunal for respondents and claimants alike and also has extensive litigation experience in the Employment Appeals Tribunal, County Court, High Court and Court of Appeal. He has experience in dealing with TUPE, Unfair Dismissals and discrimination. In the past, Mark has held lecturing posts at Warwick University and the city of Oxford college. Mark has a long-standing membership within the Employment Lawyers Association and The Law Society. To contact Mark, visit the Contact Us page. For media enquiries: info@dphlegal.com