Brexit in the workplace: could employers face discrimination claims?

7 Jan 2020 By James Davies and Tom Heys

With powerful feelings on either side of the debate, James Davies and Tom Heys explain the issues that could arise if individuals bring their views to work

It is possible that a strong conviction for or against the UK exiting the EU could count as a ‘philosophical belief’ under equality law. This potentially enables workers to pursue discrimination claims if they are mistreated or harassed by their boss or co-workers because of their personal stance on Brexit.

The Equality Act 2010 prohibits workplace discrimination on grounds of philosophical as well as religious belief. But while philosophical beliefs have the same level of protection, not all beliefs qualify. The legal test was set 10 years ago in Grainger v Nicholson, which established that a philosophical belief must be: 

  • genuinely held;
  • not merely an ‘opinion’ based on present information available;
  • about a weighty and substantial aspect of human life and behaviour;
  • of a certain level of cogency, seriousness, cohesion and importance, with similar status to a religious belief; and
  • worthy of respect in a democratic society, not incompatible with human dignity, and not in conflict with the fundamental rights of others.

Various tribunal cases have considered different beliefs and whether they might qualify as philosophical. One case with relevance to Brexit was McEleny v Ministry of Defence, which concerned an electrician who, away from work, was an elected councillor for the Scottish National Party (SNP). He was politically active and most of his free time was taken up by SNP activity, including running two times for deputy leader of the party. 

The tribunal found that McEleny’s “unshakeable” belief in Scottish independence amounted to a philosophical belief. The question of how a country should be governed was a serious one, and the self-determination of its people related to a “weighty and substantial aspect of human behaviour”. McEleny was, therefore, entitled to protection against discrimination in respect of his dismissal.

How might this apply to Brexit?

Similarly, tribunals in some cases might find a person’s belief in Brexit is philosophical. It would most likely be regarded as genuinely held if the individual had consistently argued for Leave over a long period, and if their core belief in the importance of the UK leaving the EU and repatriating sovereignty was consistently held. If this can amount to a philosophical belief then, arguably, so too can the beliefs of an ardent Remainer. 

Beliefs are idiosyncratic things that vary from person to person, however. The specific facts and evidence in each case will be crucial, particularly regarding the following elements of the Grainger test:

There must be a definitive belief, not merely an opinion. In practical terms, this means those with more rigid mindsets are most likely to be protected. 

Mere political viewpoints are not covered and something more is needed, such as a broader ideology encompassing topics such as sovereignty, self-determination and governance.

The belief needs to permeate many aspects of a person’s life, which suggests that contending for or against Brexit would need to be combined with, for example, taking part in protests, donating to campaigns, canvassing or being active on social media. 

So the key question is whether having voted Remain or Leave, or having a political view on whether the UK is better off inside or outside the EU, is the manifestation of a wider underlying philosophical belief. While different tribunals could come to different conclusions depending on the factual circumstances, employers should certainly be alive to the possibility of the argument being raised.

James Davies is a partner and Tom Heys a legal analyst at Lewis Silkin, the UK member firm of Ius Laboris

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