Oscar Davies acts in important Employment Appeal Tribunal case on political belief

Oscar acted in a two-day Employment Appeal Tribunal (EAT) appeal examining the scope of protected beliefs under the Equality Act 2010, following Grainger and Forstater.

Background

The Claimant’s case was that his assignment with an NHS Trust had been terminated because of his belief in English nationalism. He claimed that this was belief discrimination contrary to the Equality Act 2010 (“EqA”). At a preliminary hearing, the employment tribunal held that the claimant’s belief was not protected by the EqA, in particular that it did not pass the fifth limb of the Grainger criteria: “it must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others”. The Claimant appealed against this decision.

Appeal

The EAT considered that the Claimant’s views, and in particular his views that were considered Islamophobic, were not capable of protection under the European Convention of Human Rights (“the Convention”) as they would offend Article 17, which provides that “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

As the EAT judge summarised, “The claimant is not prevented from holding his views, but he is outside of the right to complain that he has been discriminated against in relation to those beliefs in the circumstances covered by the EqA.”

Clarification post-Forstater

A question on appeal was the extent to which the EAT decision in Forstater had departed from Grainger. The Honourable Mr Justice Sheldon, sitting at the EAT, opined on the European Convention case law regarding Article 17, and the interaction with Articles 9 and 10 of the Convention:

95.  In my judgment, the decision in Forstater is not inconsistent with the Grainger criteria, including the fifth criterion. What Forstater has done is to provide further colour to the fifth criterion, explaining in greater detail the contours of Article 17 of the Convention which delineates the boundary between beliefs (as well as speech and association) that are capable of being protected by the Convention (albeit interference with the manifestation of such belief, or speech and association, may depending on the circumstances be justified) and those which are not. The claimant’s belief in anthropogenic climate change that was subject to appeal in Grainger was not one which could have fallen foul of Article 17, and so it was not necessary for Burton J to explore Article 17 in great detail.

96. As explained repeatedly by the Strasbourg Court, Article 17 is a protective mechanism. It is designed to preclude States, groups or persons, from engaging in activities or performing acts that undermine the very purpose of the Convention itself, and the rights that it protects. That is, it will not protect those activities or acts that are “aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.” Article 17 is itself derived from Article 30 of the Universal Declaration of Human Rights which provides that: “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein”.

97. Choudhury P was correct to say that “Article 17 is only applicable on an exceptional basis and in extreme cases.” As a corollary, it will only be exceptionally, and in extreme cases, that an individual’s belief is not protected by section 10 of the EqA, and so it is only exceptionally and in extreme cases that an individual can be discriminated against by an employer (or a service-provider), merely because they hold a particular belief. The threshold for a belief not being protectable at all is, therefore, necessarily high.

100. From Perinçek, it might be thought that Article 17 applied only where, in the context of an applicant relying on his Article 10 rights, the statements sought to stir up violence or hatred but not intolerance, and that stirring up intolerance was only relevant to the question as to whether Article 10 rights were justifiably interfered with. This is supported by the Second Section of the Strasbourg Court in its decision in Lilliendhal, discussed by Choudhury P in Forstater: see paragraph 65 above. At paragraphs 33-39, the Court in Lilliendhal referred to the two different categories of “hate speech”. The first category comprised of the “gravest forms of ‘hate speech’”, which the Court has considered falls under Article 17, and is excluded entirely from the protection of Article 10. The comments of the applicant in Lilliendhal were found not to fall into that category. The second category was comprised of “‘less grave’ forms of ‘hate speech’” which did not fall entirely outside of Article 10, but could be restricted.

101. In Ibragimov on the other hand, the applicants complained that their Article 9 and 10 rights had been violated by the Russian courts declaring that certain books that had been published and used for religious and educational purposes were “extremist”. The Court in Ibragimov, having quoted from Perinçek, stated that the “decisive point under Article 17” was “whether the text in question sought to stir up hatred, violence or intolerance” (emphasis added). That was consistent with what the Fourth Section of the Strasbourg Court had said in Norwood: that Article 17 protected the values of “tolerance, social peace and non-discrimination”. Support for this approach may also be found in the judgment of the Grand Chamber in Sanchez: see paragraph 83 above. Indeed, the decisions in Norwood and Sanchez also provide some support for the proposition that beliefs that do not reflect the principle of “non-discrimination” may also fall foul of Article 17.

102. It seems to me, therefore, that there is some dissonance in the Strasbourg jurisprudence. To that extent, therefore, the conclusion of the legal analysis in Forstater at [79] that only those beliefs that would be “an affront to Convention principles in a manner akin to that of pursuing totalitarianism or advocating Nazism, or espousing violence and hatred in the gravest of forms” fall foul of Article 17 may not be the last word on the matter. Beliefs that espouse intolerance or discrimination might also fall outside of the protection of the Convention. It is not necessary, however, for me to express a firm view on this point, as it is clear to me that Employment Judge Hyde was right to conclude that the claimant’s beliefs are not protected, even if the stricter approach in Forstater is adopted.