During the COVID-19 lockdown the initial British Government mantra of ‘Stay home. Protect the NHS. Save lives’, the ritualistic weekly public clapping for the National Health Service (NHS) and the overall tone of the media coverage led several commentators to raise the question of whether the NHS had become a religion.Footnote 2 This question is legally significant. The question of whether the lockdown breached Article 9 has already been the subject of litigation. R (on the application of Hussain) v Secretary of State for Health [2020] EWHC 1392 (Admin) concerned the then prohibition on private prayer in places of worship. Swift J refused an application for interim relief to allow Friday prayers at Barkerend Road Mosque. Lockdown did infringe the claimant's Article 9 rights but this interference was only with one aspect of religious observance and the interference had a finite duration. The legitimate difference of opinion between the claimant and the British Board of Scholars and Imams was relevant to the question of justification. There was no real prospect that the claimant would succeed at obtaining a permanent injunction at trial because the pandemic presented ‘truly exceptional circumstances’ that meant that the interference would be justified on grounds of public health. Swift J was satisfied that there was a sufficiently arguable case to grant permission to apply for judicial review but he did not order that the claim be expedited. In Dolan, Monks and AB v Secretary of State for Health [2020] EWHC 1786 (Admin), an application of a judicial review of the lockdown regulations and schools closure was refused. However, in relation to Article 9, Lewis J adjourned consideration of this discrete issue because regulations had just been made that allowed communal worship which may have made the argument academic. English law provides the right to manifest religion or belief under the Human Rights Act 1998 and the right not to be discriminated against on grounds of religion or belief in relation to employment and the provision of goods and services under the Equality Act 2010. This raises the point: during the lifting of lockdown, when authorities require people to go back to their workplace or send their children to school, could individuals who refuse say they were legally entitled to decline on the basis that such a requirement breached their belief in protecting the NHS?
This brief comment explores whether such an argument could be made. A belief in protecting the NHS would potentially fall under the definition of belief rather than religion. There is confused and contradictory case law on the meaning of belief for the purpose of religion or belief discrimination law.Footnote 3 This is underscored by four recent cases. The first two are contradictory decisions on vegetarianism and veganism: the decision in Conisbee that a belief in vegetarianism was not capable of being protected;Footnote 4 and the decision by the same judge in Casamitjana that ethical veganism is a belief that qualifies for protection.Footnote 5 The second two cases concerned beliefs that sex is biologically immutable, in Forstater Footnote 6 and Mackereth,Footnote 7 which both held that such beliefs were not protected by the Equality Act 2010.Footnote 8
This comment will explore the case law on the definition of belief and the tests that employment tribunals have used as a whole, collating and comparing with these recent decisions, as well as paying particular to the decisions which are most analogous to the question set here: the cases of McEleny,Footnote 9 in which it was held that a belief in Scottish independence was capable of being protected, and of Maistry,Footnote 10 in which the employment tribunals held (and the Court of Appeal did not challengeFootnote 11) the finding that a belief in public service broadcasting was capable of being protected as a belief (though the claim then failed on substantive grounds). This comment will explore the preliminary tests that a belief in the NHS would need to satisfy in order to be potentially capable of being protected under the Equality Act. In so doing, it will become apparent how malleable and therefore unsatisfactory the current approach to the definition of belief under discrimination law is.Footnote 12
The turning point in the case law on the definition of belief was the decision of the employment appeal tribunal (EAT) in Grainger,Footnote 13 which concluded that a belief in manmade climate change was capable of constituting a ‘philosophical belief’ because it met the criteria laid out by the case law of the European Court of Human Rights, which was directly relevant. This was important for two reasons. The first was the EAT's insistence that the Strasbourg case law was to be followed. This was noteworthy because the Equality Act only protects ‘any religious or philosophical belief’,Footnote 14 while the European Court makes no distinction between philosophical or non-philosophical beliefs and has taken an expansive approach, even considering political beliefs like communism and Nazism.Footnote 15 The case law as a whole has invariably considered claims without questioning whether they fit the definition of religion or belief and this suggests that a belief in the NHS would fall under Article 9 of the European Convention on Human Rights.Footnote 16Grainger suggests that the same broad approach is to be taken to domestic equality law.
The second reason why the decision in Grainger is important is because it provided five tests which employment tribunal chairs have subsequently applied as if they were statutory tests.Footnote 17 As Forstater noted, these five criteria are also expressed in the Equality and Human Rights Commission's Employment Statutory Code of PracticeFootnote 18 and ‘the Tribunal is required to take the code into account where it is relevant but is not bound by it’.Footnote 19 Nonetheless, subsequent employment tribunal decisions have followed the texts to the letter.Footnote 20 However, some decisions have stressed that ‘the threshold for establishing the Grainger criteria should not be set “too high”’.Footnote 21 The following will therefore explore each of the five tests in turn to see how they could be applied to the question of whether a belief in the NHS and the need to protect it could constitute a belief for the purposes of the Equality Act 2010 (and so whether interference with that belief could amount to discrimination, harassment and/or victimisation).
THE BELIEF MUST BE GENUINELY HELD
The first test – that the belief must be genuinely held – is usually easily met. In Conisbee Footnote 22 and Casamitjana Footnote 23 this point was conceded by the respondents and accepted by the tribunal. It was also accepted in Mackereth and Forstater, which reiterated the principle found in the House of Lords decision in Williamson Footnote 24 that this inquiry was limited to considering whether the belief is held in good faith.Footnote 25 However, despite Williamson also stating that
it is not for the court to embark on an inquiry into the asserted belief and judge its ‘validity’ by some objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion in question
a number of employment tribunal decisions, including Casamitjana, have said that they have based their finding on the evidence submitted.Footnote 26 This is compliant with Williamson if this assessment is based on quantity rather than quality. In Streatfield it was held that the claimant's humanist beliefs were genuinely held because there was evidence that she had held these beliefs from an early age and had ‘lived her life adopting a general adherence to those principles’.Footnote 27 That decision also confirmed that a belief would still be treated as genuine even if it was not manifested by the claimant at all times. A belief in protecting the NHS, provided that the claim was not made in a vexatious way in order to avoid legal obligations, would surely be able to meet the first Grainger test. In Maistry the fact that the belief was ‘of great personal significance’ to the claimant, given his career and experiences, was mentioned as part of Employment Judge Hughes's finding that there was ‘no reason whatsoever to doubt the strength of the claimant's feelings about this’,Footnote 28 but it is questionable whether this is to be taken as requiring such significance for this test to be met in all cases.
IT MUST BE BELIEF RATHER THAN AN OPINION OR VIEWPOINT
The second requirement is that a belief must not be merely an opinion or a viewpoint based on the present state of information available, but this has been applied in an inconsistent way. The requirement originated in McClintock Footnote 29 concerning a justice of the peace who resigned since he could not in conscience agree to place children with same-sex couples because he felt further research was needed on the effect that this would have upon the children. Both the employment tribunal and the EAT held that the claimant's objection did not constitute a belief because he had not as a matter of principle rejected the possibility that single-sex parents could ever be in the child's best interest: it was not sufficient ‘to have an opinion based on some real or perceived logic or based on information or lack of information available’.Footnote 30 In Farrell v South Yorkshire Police Authority it was held that this requirement was met since, unlike in McClintock, the claimant had come to a conclusion that the evidence pointed one way and not another.Footnote 31 The crucial factor was that, while he was prepared to admit that he might be wrong, he did not believe himself to be wrong. This was applied in Forstater, where it was accepted that the claimant's belief was ‘more than an opinion or viewpoint based on the present state of information available’ and that she was ‘fixed in it, and appears to be becoming more so’.Footnote 32
However, in other cases this requirement has been taken further to suggest that, even where the claimant has reached a settled conclusion, this will not be sufficient. Notably in Conisbee Employment Judge Postle held that this test had not been met because ‘it is simply not enough to have an opinion based on some real, or perceived, logic’.Footnote 33 This refers to the first limb of the McClintock test but does not explain why the tribunal found that the belief was an opinion or viewpoint rather than a belief capable of protection. Employment Judge Postle seems to have posed questions about the validity of belief that Williamson warned against. This is underlined by his decision in Casamitjana that this test had been met because ‘ethical veganism carries with it an important moral essential’, ‘is founded on a longstanding tradition’ and therefore is ‘not simply a viewpoint, but a real and genuine belief and not some irrational opinion’.Footnote 34 Such an approach is not only deeply conservative but is fundamentally inappropriate: it is not for judges to decide whether beliefs are rational or not and to hold that irrational beliefs are mere opinions and so not protected. It would appear that the discussion of this in Conisbee and Casamitjana is a misstatement of the law.
Even allowing for this ambiguity in the case law, it would appear that a belief in protecting the NHS could satisfy the second requirement, provided that the claimant's belief was fixed and not dependent on (say) whether the NHS could cope at a particular time. Other decisions have stressed that there is a low threshold to satisfying this second test. Grainger itself insisted that a ‘philosophical belief does not need to amount to an “-ism”’Footnote 35 and Hashman confirmed that beliefs regarding specific matters can meet this threshold if they form part of a larger philosophy: beliefs concerning hunting met this requirement because the claimant's beliefs were to be ‘considered within the parameters of his general beliefs … in the sanctity of life’.Footnote 36 In Maistry the test was met on the basis of statements about the purpose of public broadcasting and the fact that the importance of the independent public space had ‘attracted commentary by philosophers and academics’.Footnote 37 It is likely that the same conclusion would be reached in relation to the NHS, on grounds of its importance for public healthcare and the role of the welfare state. It is difficult to imagine an employment tribunal chair dismissing a belief to protect the NHS as being a mere opinion subject to change. Indeed, in McEleny the tribunal rejected the respondent's argument that a belief in Scottish independence failed this test because all political beliefs were ‘up for debate’ and ‘cannot be held as a matter of principle’. The tribunal insisted that the belief was not ‘susceptible to change if challenged by empirical evidence’ but was instead ‘unshakeable’ and so the test was met.Footnote 38
IT MUST BE A BELIEF AS TO A WEIGHTY AND SUBSTANTIAL ASPECT OF HUMAN LIFE AND BEHAVIOUR
In most cases the third requirement – that the belief needs to relate to a weighty and substantial aspect of human life and behaviour – is easily satisfied. In Forstater it was simply acceptedFootnote 39 while in Grainger itself it was stated that this did not exclude ‘“one-off” beliefs such as pacifism and vegetarianism which do not govern the entirety of a person's life’.Footnote 40 In McEleny it was stated that, while it was not necessary for others to share the belief, ‘it must have an impact on others’.Footnote 41 This does not mean that it needs to affect the whole of humanity: short shrift was given to the respondent's argument that a belief in Scottish independence would not ‘extend far beyond Scotland’, meaning that ‘since it had no substantial impact upon the lives of citizens in for example Tanzania, Peru or India, it is not a substantial aspect of human life or behaviour’.Footnote 42
Again, the decisions in Conisbee and Casamitjana took a more restrictive approach. In Conisbee it was concluded that ‘vegetarianism is not about human life and behaviour, it is a lifestyle choice’.Footnote 43 While vegetarianism was ‘an admirable sentiment’, it could not ‘altogether be described as relating to weight and substantial aspect of human life and behaviour’. By contrast, in Casamitjana the same employment judge concluded that veganism is ‘at its heart between the interaction of human and non-human animal life’ and that
The relationship between humans and other fellow creatures is plainly a substantial aspect of human life, it has sweeping consequences on human behaviour and clearly is capable of constituting a belief which seeks to avoid the exploitation of fellow species.Footnote 44
It is difficult, however, to see why the same could not be said of vegetarianism and this contradiction means that it is difficult to extrapolate points of principle from how these two decisions dealt with this test; indeed, if it were possible it would be questionable whether such points would be legally correct: again, we see employment judges entering into questions of validity and worth. In any case, it is difficult to see how the Conisbee precedent could lead to the conclusion that this test is not capable of being met in relation to a belief in the NHS.
By contrast, the decision in Maistry seems to suggest that such a belief would satisfy the third test. Employment Judge Hughes held that:
A belief in the importance of providing a non-commercial, non-Governmental, independent public space in which cultural, social and political tensions can be debated and explored and in which tolerance of other viewpoints is fostered, clearly relates to weighty and substantial aspects of human life and behaviour.Footnote 45
The respondent's case had been that this test was not met because ‘the legislation could not have been intended to cover a belief of this nature because really it was no more than a “mission statement”’.Footnote 46 The respondent argued that, ‘if the claimant was right, then it would follow that beliefs in the aims and values of a whole host of public organisations, if genuinely held, could amount to philosophical beliefs’. The example given by the respondent is important given the subject matter of this comment: ‘the respondent suggested that a belief that the aim of the NHS should first and foremost be to look after the health and welfare of its patients could, if the claimants were correct, amount to a belief’. The respondent argued that this would be ‘absurd’ but Employment Judge Hughes held that the public aims of an organisation could amount to a philosophical belief if those aims were the results of an underlying philosophical belief. For Hughes, that the beliefs
might fairly be characterised as idealistic in nature and/or as a ‘mission statement’ … does not negate fact that the evidence before me was that those purposes arise because of a shared belief in the importance of public service broadcasting in a democratic society.Footnote 47
This suggests that a similar belief about public healthcare would satisfy the third test.
IT MUST ATTAIN A CERTAIN LEVEL OF COGENCY, SERIOUSNESS, COHESION AND IMPORTANCE
The requirements of the fourth test – that the belief needs to attain a certain level of cogency, seriousness, cohesion and importance – are taken from the human rights jurisprudence. The leading case on this is the EAT decision in Harron, in which Langstaff J confirmed that ‘there is no material difference between the domestic approach and that under Article 9’ and that Lord Nicholls’ speech in Williamson Footnote 48 is to be followed.Footnote 49 For Langstaff J, this meant that ‘the belief must relate to matters more than merely trivial’ and coherence ‘is to be understood in the sense of being intelligible and capable of being understood’.Footnote 50 This is uncontroversial. However, Langstaff added that ‘where a belief has too narrow a focus it may, depending upon the width of that focus, not meet the standards at the appropriate level identified’.Footnote 51 He stated that this followed Lord Nicholls’ rubric that the belief needs to be on a fundamental problem: ‘That might be thought to exclude beliefs that had so narrow a focus as to be parochial rather than fundamental.’
This has, however, led some employment tribunal chairs to conclude that the fourth requirement is not met because the belief is ‘parochial’ without explaining why they have considered it so and therefore again potentially breaching Williamson by determining the validity of the belief. In Lisk Footnote 52 Employment Judge George held that belief that one should wear a poppy to show respect to serviceman failed this test because he would characterise the claimant's belief as ‘a belief that we should express support for the sacrifice of others and not as a belief in itself’ and this was ‘too “narrow” to be characterised as a philosophical belief’. Similarly in Mackereth the employment tribunal ran the third and fourth tests together and held that, although a belief in Genesis 1:27 and a lack of belief in transgenderism met these requirements ‘given the low threshold’, a belief that it would be irresponsible and dishonest for (say) a health professional to accommodate and/or encourage a patient's impersonation of the opposite sex did not meet these requirements ‘because of the narrowness of the issue they represent’.Footnote 53 No further explanation was given.
In Conisbee it was held that this test was not met because there were ‘numerous, differing and wide varying reasons for adopting vegetarianism’ in contrast to veganism.Footnote 54 Not only is this monolithic understanding of veganism suspect,Footnote 55 it is debatable whether this is relevant to the question of whether the belief is cogent and seriously held. Imposing a requirement that it cannot be too narrow or that there needs to be an agreed, singular reason for the belief is far too conservative.Footnote 56 It also raises problematic questions of how this is to be determined by the tribunal. In Farrell Employment Judge Rostant held that some sort of objective assessment of the cogency and cohesion of the philosophical belief is expected of the tribunal.Footnote 57 He stated that ‘the assessment of cogency and coherence must take into account the broadly accepted body of knowledge in the public domain’. He held that the test had not been met in the case of the claimant's belief in conspiracy theories regarding 9/11.
This is difficult, however, to reconcile with the human rights jurisprudence, including Williamson. Other tribunal decisions have taken a much more lenient approach. In McEleny it was held that this test was met where a belief is taken seriously and ‘is intelligible and capable of being understood’.Footnote 58 In Forstater it was held that the need for coherence ‘mainly requires that the belief can be understood’ and that this test would not be failed even when there was ‘significant scientific evidence that it is wrong’.Footnote 59 This is correct: the fourth requirement is about how important and serious the belief is to the claimant; it is not concerned with the objective question of how important or serious the belief is considered to be. The fact that, objectively, such beliefs are unlikely to be true is irrelevant. Atheists would maintain that all religions would fail to meet this test. The type of claim which the fourth test seeks to exclude is the deliberate sham religion.Footnote 60 There is, therefore, no reason why a belief in protecting the NHS could not satisfy this requirement. It is notable that this requirement was seen to be easily met in Maistry: ‘a strongly held belief in the purpose of mission statement of their public or private sector employer would be protected’.Footnote 61
IT MUST BE WORTHY OF RESPECT IN A DEMOCRATIC SOCIETY
The fifth and final requirement is that the belief must be worthy of respect in a democratic society, must be compatible with human dignity and must not be in conflict with the fundamental rights of others.Footnote 62 Beliefs will meet this threshold unless they abuse the rights of others. As Baroness Hale noted in Williamson: ‘A free and plural society must expect to tolerate all sorts of views which many, even most, find completely unacceptable.’Footnote 63 In Conisbee, Casamitjana, McEleny and Maistry it was readily accepted that this condition had been met.Footnote 64 Indeed, in the case law to date there are mostly only hypothetical examples of when this test would not be met. Lord Nicholls in Williamson gave the example that beliefs that ‘involved subjecting others to torture or inhuman punishment would not qualify for protection’;Footnote 65 in Grainger it was suggested that ‘a racist or homophobic political philosophy’ would be excluded.Footnote 66
However, Mackereth and Forstater now provide actual examples of this test being failed. In Mackereth a belief in Genesis 1:27, a lack of belief in transgenderism and a belief that it would be irresponsible and dishonest for (say) a health professional to accommodate and/or encourage a patient's impersonation of the opposite sex were all held to be ‘incompatible with human dignity and [to] conflict with the fundamental rights of others, specifically here, transgender individuals’.Footnote 67 Similarly in Forstater Employment Judge Tayler concluded that the ‘claimant's view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others’ since it denied ‘the right of a person with a Gender Recognition Certificate to be the sex to which they have transitioned’.Footnote 68 This test was the ground upon which the claimant lost. It is difficult to disagree with Hambler's conclusion that the emphasis upon the ‘absolutist’ nature of the belief is misplaced in that this flies in the face of the other tests under Grainger.Footnote 69 Equally compelling is Hambler's argument that this is a misinterpretation of the fifth test on the grounds that it ‘seems to conflate the notion of harassment, as understood under discrimination law, with incompatibility with human dignity (under Grainger)’ and does this without any authority.Footnote 70 If they are correctly decided, Mackereth and Forstater suggest that balancing of competing rights is a consideration under the fifth test. It would appear that a belief that leads the claimant not to respect the law would fail under the fifth test. It would seem, however, that this controversy would be unlikely to affect any claim concerning a belief in the NHS. It is difficult to conceive of a situation where a belief in protecting the NHS would fail this fifth requirement.
CONCLUSION
Whether a claim that forcing the claimant out of lockdown discriminates against them on grounds of their belief in the NHS would be successful in a tribunal would depend upon the evidence adduced, including how the claimant had been disadvantaged. This comment, however, has suggested that the current state of the case law concerning the Grainger tests shows that such an argument is capable of being made and falling for protection under the Equality Act 2010. If ‘BBC values’ can be protected, as Maistry confirmed,Footnote 71 then a belief in NHS values could also be protected. If a belief in Scottish independence falls under the Equality Act, as McEleny confirmed, then a belief in the need to protect and maintain a public health service will also qualify. This would raise a further interesting potential scenario. Given that in such a claim some consideration is bound to be afforded to Article 9 considerations, there would need to be discussion of Article 9(2), which states that freedom to manifest one's religion or belief can be subject to limitations that are necessary in the interests of, inter alia, public health.
This comment has also highlighted how inconsistent the case law on the definition of belief under the Equality Act 2010 is. Many of the tests are not only elastic in nature but have forced tribunals to reach binary judgments that are inappropriate in relation to genuinely held convictions. And these judgments are sometimes made by reference to the tribunal's supposedly objective determination of the worth of the belief rather than focusing on what it means to the claimant. That ought to be the test. It is ironic that, while Grainger said that the case law of the European Court of Human Rights was relevant and used this to fashion the tests, the interpretation of the Grainger tests has sometimes strayed far from a human rights approach. The NHS may well be a religion – sociologically, theologically, philosophically and even potentially legally – but it is also true that the law on the definition of belief itself needs to be nursed back to health.
