Case Summary and Outcome

The Employment Tribunals (Scotland) held that an individual’s belief in Scottish independence amounted to a “philosophical belief” and was, therefore, a protected characteristic for the purposes of claiming direct discrimination under equality law. The claim was brought by Mr. Christopher McEleny, who worked for the Ministry of Defence and was a councillor for the Scottish National Party (SNP). Upon resigning from the Ministry of Defence, he claimed that he had been treated less favorably by his employer because of his membership of the SNP and his belief in Scottish independence. He claimed that this amounted to direct discrimination under the Equality Act 2010, which prohibited direct discrimination on the basis of a protected characteristic of religion or belief. Although the Tribunal could not find that his support for the social democratic values of the SNP amounted to a “philosophical belief”, it concluded that his belief in Scottish independence did amount to such a belief. This was because the belief (i) was genuinely held, (ii) was not an opinion based on the present state of information available, (iii) was a belief as to a weighty and substantial aspect of human life and behavior, (iv) attained a certain level of cogency, seriousness, cohesion and importance, and (v) was worthy of respect in a democratic society.

Facts

The case concerned Mr. Christopher McEleny, who worked at the UK Ministry of Defence. He was an individual who passionately and very deeply believed that Scotland should be an independent country and in the right of the Scottish people to self-determination. He believed that Scotland should be an independent country irrespective of the economic and social consequences of independence. Since 2006, he had been an active member of the Scottish National Party (SNP). The members of this political party shared a common belief in an independent Scotland. He had been elected as a SNP councillor in 2012, and a member of its National Executive Committee since 2016. He had vocalized his belief in various public talks at dozens of events for which he received no financial support.

The SNP had been in government in Scotland since 2011. In 2014, there was a constitutional and democratic referendum held in Scotland concerning whether Scotland should be an independent country. Over 1.5 million of the Scottish electorate voted in favor of independence. [para. 7]

Shortly before his resignation from the Ministry of Defence, he wrote to the human resources department by email on June 20, 2017. In this email he stated that he would bring proceedings to an Employment Tribunal claiming that the personnel at the Ministry of Defence had, among other things, urged that his security clearance be removed on grounds that he was a member of the SNP. Mr. McEleny argued that he had been directly discriminated against on the basis of his “philosophical belief” in violation of section 13 of the Equality Act 2010. He identified his “philosophical belief” as being “a belief in Scottish independence and the social democratic values of the [SNP].” [para. 1] The Ministry of Defence argued that Mr. McEleny could not claim that he had been directly discriminated against under section 13 of the Equality Act 2010 because the support of Scottish independence and the social democratic values of the SNP amounted to a political opinion rather than a philosophical belief.

Decision Overview

The main issue considered by the Scottish Employment Tribunal (Tribunal) was whether Mr. McEleny’s belief in Scottish independence amounted to a philosophical belief within the meaning of Section 10(2) of the Equality Act 2010 and could be relied upon as a protected characteristic for the purposes of claiming direct discrimination under Section 13 of the Equality Act 2010. The Tribunal noted that, under section 10(2) of the Equality Act 2010, “[b]elief means any religious or philosophical belief and reference to belief includes a reference to lack of belief”. [para. 25]

The Tribunal went on to consider the essential criteria, set out in Grainger plc & others v. Nicholson (Grainger), for a belief to qualify for protection as a philosophical belief. These criteria were as follows: (i) it must be genuinely held, (ii) it must be a belief and not an opinion or viewpoint based on the present state of information available, (iii) it must be a belief as to a weighty and substantial aspect of human life and behavior, (iv) it must attain a certain level of cogency, seriousness, cohesion and importance, and (v) it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

The Tribunal held that Mr. McEleny’s belief in the social democratic values of the SNP was a manifestation of his belief in Scottish independence. It went on to hold that the support or active membership of a political party did not of itself amount to a philosophical belief.  a belief based on political theory was capable of being a philosophical belief under the Equality Act 2010. Therefore, his belief in the social democratic values of the SNP did not meet the requirement of being a philosophical belief. Nonetheless, the Tribunal still held that a belief based on political theory could amount to a philosophical belief. It also noted that Mr. McEleny’s belief in Scottish independence could be severed from his belief in the social democratic values of the SNP.

The Tribunal then applied the five criteria from Grainger to Mr. McEleny’s belief in Scottish independence. First, there was no dispute that Mr. McEleny’s belief in Scottish independence was genuinely held. Second, the Tribunal was satisfied that his belief was not an opinion or viewpoint that he holds based on the present state of information available. Mr. McEleny made it clear that his belief was “unshakeable” and not based on the idea that it would lead to economic or social improvement for Scotland. Third, it was not in dispute that his belief had a substantial effect on his life and how he behaved. The Tribunal noted that, for the third criterion, it had to be persuaded that his belief was a belief as to a weighty and substantial aspect of human life and behavior generally. In short, the belief had to have an impact on others. The Tribunal was satisfied that Mr. McEleny’s belief in Scottish independence met this requirement. Fourth, the Tribunal was satisfied that that “how a country should be governed is sufficiently serious to amount to a philosophical belief”. [para. 34] Furthermore, his belief was intelligible, capable of being understood and coherent. Fifth, there was no dispute that a belief in Scottish independence was worthy of respect in a democratic society and was not incompatible with human dignity and in conflict with the fundamental rights of other. The Tribunal went on to the note that the “belief in independence is widely recognised and considered worthy of respect in democratic societies beyond Scotland.” [para. 35]

In conclusion, the Tribunal held that Mr. McEleny’s belief in Scottish independence amounted to a philosophical belief for the purposes of section 10(3) of the Equality Act 2010 and can be relied upon by Mr. McEleny as a protected characteristic for the purposes of claiming direct discrimination under section 13 of the Equality Act 2010.