Democratic socialism a philosophical belief under Equality Act 2010

Belief in “democratic socialism” a philosophical belief under Equality Act 2010

In Olivier v Department of Work and Pensions ET/1701407/2013, an employment tribunal considered, as a preliminary issue, whether an employee's belief in "democratic socialism" could amount to a philosophical belief for the purpose of bringing a discrimination claim.

Background

The Equality Act 2010 (the EqA 2010) prohibits direct discrimination, indirect discrimination and harassment in the workplace in respect of religion, religious belief and philosophical belief. In Grainger plc and others v Nicholson [2010] IRLR 4 (EAT), the EAT gave some guidance on the definition of philosophical belief, drawn partly from human rights cases:
• The belief must be genuinely held. While it is not a tribunal's function to assess the "validity" of a belief
by some objective standard, evidence (including cross-examination) may be needed to establish that the belief is genuine.
• It must be a belief, not an opinion or viewpoint based on the present state of information available.
• It must be a belief as to a weighty and substantial aspect of human life and behaviour.
• It must attain a certain level of cogency, seriousness, cohesion and importance. It must "have a similar status or cogency to a religious belief", but need not "allude to a fully-fledged system of thought". In other words, it does not need to be an "-ism".
• It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

The EAT stated that, while "support of a political party" does not of itself amount to a philosophical belief, a belief in a political philosophy or doctrine, such as socialism, Marxism or free-market capitalism, might qualify. Before the EqA 2010 came into force, a government spokesperson stated that it was not the intention to the Act to cover political beliefs, saying: "The government does not think that views or opinions based on scientific - or indeed on political - theories can be considered to be akin to religious beliefs or philosophical beliefs. Nor was it the intention in introducing the legislation that such beliefs should be covered."

Facts
Mr Olivier worked for the Department of Work and Pensions (DWP) as a benefits adviser in a job centre. In 2013, he was elected as a Labour councillor and had a letter published in a local newspaper, criticising the government's taxation and benefits policies. By this time Mr Olivier had been an active member of the Labour Party for over 30 years and had stood as a Labour candidate in other council elections. He had also canvassed on behalf of the Party and campaigned against hospital closures.

Mr Olivier believes that the Labour Party is not simply an organisation, but that it enshrines a set of core beliefs, displayed on its membership card, that are recognised by the general public. He consider these beliefs amount, in essence, to "democratic socialism". Mr Olivier's strong belief in these values influences how he conducts his life.

The DWP has Standards of Behaviour Procedures (SBP), which restrict and manage when and how its civil service employees can engage in political activity. The DWP accused Mr Olivier of gross misconduct, for not seeking management permission before his most recent standing as councillor (in breach of the SBP) and for writing the letter to the newspaper. He was dismissed. Mr Olivier brought an unfair dismissal and direct discrimination claim, alleging that he was dismissed because of his affiliation with the Labour Party.

Decision
At a preliminary hearing, an employment tribunal considered whether Mr Olivier's belief in democratic socialism qualified as a "philosophical belief" under the EqA 2010. It held that it did.
The tribunal applied the EAT's guidance in the Nicholson case (see Background). Both parties agreed that Mr Olivier genuinely held his belief and that the belief was worthy of respect in a democratic society, was not incompatible with human dignity and did not conflict with the others' fundamental rights. The tribunal agreed that these two criteria were satisfied.

On the balance of probabilities, the tribunal was satisfied that Mr Olivier had more than a passing interest in, and was not merely a repeat voter for, the Labour Party. He had a strong connection with and interest in the history and tenets of the Socialist Labour Party. He lived for the Labour Party, supporting its aims, beliefs and causes. The tribunal found that he had a personal belief in democratic socialism and was not simply (as the DWP had argued) a "political animal" who chooses to support a particular party. The tribunal went on to apply these facts to the other limitations in the Nicholson case and held that they too were satisfied:
• Mr Olivier's belief was a belief, rather than merely an opinion or viewpoint.
• It was a belief as to a weighty and substantial aspect of human life and behaviour.
• The belief has attained a certain level of cogency, seriousness, cohesion and importance.

As a result, Mr Olivier's belief in "democratic socialism" qualified for protection as a philosophical belief under the EqA 2010, even though support of a political party would usually be excluded from the same protection.
The tribunal also found that, regardless of its finding on the preliminary issue, Mr Olivier's claims had little prospects of success and made a deposit order.

Comment
Although this case is only a first instance tribunal decision and is therefore not binding on other tribunals, it is an interesting example of how a member of a political party was able to bring their political beliefs within the scope of the discrimination legislation. The tribunal did not go so far as to say that membership or support of a political party would be sufficient to qualify as a philosophical belief under the Equality Act 2010. To do so would contradict the EAT's guidance in the Nicholson case. What was germane was the claimant's strong identification with the Labour Party's values, evidenced by his heavy involvement with party activity.