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Tribunal asked to consider whether supporting Scottish independence is a ‘philosophical belief’

9 Jan 2018 By Marianne Calnan

Discrimination claim by councillor who was suspended by MoD after seeking SNP role

A councillor has brought an employment tribunal against his former employer, the Ministry of Defence (MoD), claiming it discriminated against him because he believes in Scottish independence.

According to press reports, Scottish National Party (SNP) member Christopher McEleny is arguing that Scottish nationalism – or independence from Britain – is a philosophical belief, congruous with his SNP membership, and was the reason he was dismissed.

Under the Equality Act 2010, it is unlawful for employers to discriminate against individuals on account of their religious or philosophical beliefs. These beliefs must be genuinely held and have a certain level of cogency, seriousness, coherency and importance, be worthy of respect in a democratic society, and cannot simply be the opinion or viewpoint of an employee.

If the claim proceeds, the tribunal would consider whether support for Scottish independence amounts to a ‘philosophical belief’ and is therefore a protected characteristic under equality laws.

According to Scottish media reports, McEleny’s security clearance was allegedly withdrawn and he was suspended from his post as an electrician at the MoD’s munitions plant in August 2017, after he announced his bid to become SNP deputy leader in 2016, which he said amounted to discrimination based on his beliefs in independence. 

He was reportedly asked to explain his views on subjects including the use of nuclear weapons and Irish politics. He was reinstated to his role in 2017 but later chose to resign.

James Major, partner at Clyde and Co, told People Management that "to qualify as a philosophical belief under the Equality Act, the belief must be genuinely held and must be an issue of substance, not merely an opinion or viewpoint.

“In essence, it needs to be similar in nature to a religious belief. Issues such as climate change have been held by the tribunals to be of sufficient substance, where the belief is strongly held by the individual concerned, to be a philosophical belief.

“However, membership of the British National Party (BNP) and British nationalism more generally have been held by the tribunals not to have a sufficiently clear belief system to qualify."

The Act is designed to protect employees against discrimination, including harassment and victimisation for religious and philosophical beliefs.

Sarah Henchoz, partner at law firm Allen & Overy, told People Management that “when employers have staff with competing beliefs, that’s when workplaces could become uncomfortable.

“Employees are entitled to their views and for those views to be respected, but often the best way forward is to keep those views outside the working environment so working relationships are not impacted.”

She said employees claiming discrimination because of their philosophical beliefs have to be able to illustrate that they “live and breath” that belief. McEleny’s likelihood of success depends on how ardently he believes in Scottish independence and how that manifests itself in terms of how he lives his life, she added.

An MOD spokesperson said: “It would be inappropriate to comment on the details of an ongoing employment tribunal.”

McEleny had not responded to People Management’s request for comment by the time of press.

Claims that political beliefs were philosophical beliefs also hit the headlines in 2012 in Redfearn v Serco, when a bus driver who stood for election as a BNP councillor unsuccessfully argued his employer ‘discriminated’ against him for his anti-immigration stance.

Mr Redfern was employed to transport disabled passengers, a large proportion of who were Asian. After he launched his campaign to become a BNP councillor, trade unions raised objections based on the belief that his continued employment may cause anxiety to his passengers and their carers. His tribunal claim failed.

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