Employment Law Cases

Religion or belief discrimination: English nationalism

Thomas v Surrey and Borders Partnership NHS Foundation Trust

A belief in English nationalism, including anti-Islamic views, is not a protected belief under the Equality Act.

Background

Mr Thomas provided, via an agency, consultancy services to the trust. Not long after starting, his assignment was terminated on the grounds that he’d not disclosed a spent conviction (electoral fraud resulting in a 7-month prison term). However he believed that the termination of his services was because of his belief in English nationalism and brought a tribunal claim for discrimination on the grounds of religion or belief. A preliminary hearing took place to determine whether his belief was a protected one under s. 10 of the Equality Act.

For a belief to be protected under the Act, it must (see Grainger v Nicholson):

  1. be genuinely held
  2. be a belief and not an opinion or viewpoint based on the present state of information available
  3. be a belief as to a weighty and substantial aspect of human life and behaviour
  4. attain a certain level of cogency, seriousness, cohesion and importance, and
  5. be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others

While acknowledging that some political beliefs, including nationalism, could be protected beliefs, the tribunal held that the beliefs of Mr Thomas extended beyond this. Having examined public statements made by Mr Thomas, which included agreeing with the forced removal of all Muslims from the UK, the tribunal found that such views were in direct conflict with the fundamental rights of others. He therefore failed to get past the fifth Grainger hurdle and this prevented his belief in English nationalism from being a protected characteristic under the Act. He appealed.

EAT decision

The appeal was dismissed.

The EAT agreed with the tribunal’s conclusion that Mr Thomas’ belief in English nationalism was not protected under the Equality Act due to its extreme anti-Islamic nature. The EAT found that his views, which included the desire to forcibly remove Muslims from the UK, amounted to a generalised form of harassment targeting Islam. While political beliefs, including those related to nationalism, could be protected under the Equality Act, such protection has limits. Specifically, the belief must be ‘worthy of respect in a democratic society’ and must not infringe on the fundamental rights of others.

Mr Thomas also argued that his case should be considered in light of Forstater v CGD Europe, which clarified that only extreme beliefs, akin to advocating totalitarianism or Nazism, would fall outside the protection of the Equality Act. However, the EAT noted that Mr Thomas’ beliefs crossed this threshold, as they were specifically aimed at promoting intolerance and the exclusion of an entire religious group from society, which is not protected under the Equality Act or the European Convention on Human Rights.

Comment

While the threshold for protection of beliefs under the Equality Act is relatively low, this case illustrates that there are limits. Interestingly, the EAT agreed with the tribunal’s finding that English nationalism itself could constitute a philosophical belief which would fall within the definition of a protected characteristic. However, Mr Thomas’ specific expression of this belief, and particularly his extreme focus on Islam, meant that it could not qualify for protection. Where beliefs stray into sharing prejudiced views or harassing minority groups, they are unlikely to gain statutory protection.