Employment Cases Update

Harron v Chief Constable of Dorset Police UKEAT/0234/15/DA

Date published: 09/05/2016

Appeal against a decision relating to disability and philosophical belief discrimination. Appeal allowed in relation to belief discrimination and remitted to the same EJ.

Employment Claims without a Lawyer 2nd edition published March 2018

The Claimant, who worked for a police force, was found to have been disabled within the meaning of the EA from 2013, although he argued that the date was much earlier. He also had a belief that public money was being wasted. He claimed to have suffered discrimination in relation to his disability and belief. Both claims were dismissed. On the disability issue, the ET said there was no cogent medical evidence or other factual evidence that showed that the Claimant's difficulties substantially impacted on day-to-day activities or to the degree necessary to acquire protection. On the belief issue, the ET considered whether his belief met the necessary criteria to merit the protection of the Equality Act 2010, and thought it did not since it failed to meet three of the five necessary criteria expressed in Grainger. The Claimant appealed.

The EAT dismissed the appeal on the disability point but allowed it on the belief issue on the basis that it was unclear whether the Judge had in mind the proper approach to the criteria as expressed by Lord Nicholls in Williamson, and what his reasons were for holding there had been a failure to meet the criteria.

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Appeal No. UKEAT/0234/15/DA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 12 January 2016

Before

THE HONOURABLE MR JUSTICE LANGSTAFF

(SITTING ALONE)

HARRON (APPELLANT)

CHIEF CONSTABLE OF DORSET POLICE (RESPONDENT)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant
MR HARRON
(The Appellant in Person)

For the Respondent
MR GARY SELF (of Counsel)
Instructed by:
Dorset Police
HR Department - Force Headquarters
Winfrith
Dorchester
Dorset
DT2 8DZ

SUMMARY

DISABILITY DISCRIMINATION

RELIGION OR BELIEF DISCRIMINATION

The Claimant had a belief (which the Employment Tribunal thought genuine) that public service was improperly wasteful of money. He worked for the Dorset Police force (a small force) and claimed that he felt compelled to express these views and as a result suffered discrimination on the ground of his philosophical belief. He claimed to have suffered from bipolar disease, OCD and stress since around 2001, though he had not mentioned this to his employer despite having several opportunities to do so. An Employment Judge at a Preliminary Hearing considered whether his belief met the necessary criteria to merit the protection of the Equality Act 2010, and thought it did not since it failed to meet three of the five necessary criteria expressed in Grainger. He held that the Claimant was not disabled before 28 May 2013 (after which date it was admitted by the Respondent) since there was no cogent evidence that there had been a substantial adverse effect upon his normal day-to-day activities as a result of his conditions (which the Employment Judge accepted he had had for some time) before that date.

He appealed on the basis that the word "philosophical" in the statute was an unnecessary fetter on the scope of a "belief" in the light of European authority; that the Judge had impermissibly adopted too high a threshold when applying the Grainger criteria; that he had been wrong to take into account the narrow focus/parochial nature of the belief, which arose out of and was manifested almost entirely in relation to his work for the Dorset Police; and that he had insufficiently explained why he had not met the criteria in any event.

His appeal on the discrimination ground was rejected; that in respect of belief was allowed, on the basis that it was unclear whether the Judge had in mind the proper approach to the criteria as expressed by Lord Nicholls in Williamson, and what his reasons were for holding there had been a failure to meet the criteria, though the Employment Judge was held entitled to take account of whether the asserted belief was narrow and parochial, as opposed to fundamental and hence of broad application. Case remitted to the same Judge for re-determination of the question of whether the belief qualified for protection, to be decided on further submissions.

THE HONOURABLE MR JUSTICE LANGSTAFF

Introduction

1. For reasons expressed in a Judgment dated 7 May 2014 Employment Judge Miles at Southampton held that the Claimant had been disabled with effect from 28 May 2013 and that his contention that he had a profound "belief in the proper and efficient use of public money in the public sector" was not a contention sufficient to amount to asserting a protected characteristic of religion or belief. The Claimant appeals against those decisions at what was a Preliminary Hearing.

The Facts and Submissions

2. I have essentially two issues to determine: the appeal in respect of the Judge's finding as to disability and, separately, his decision as to the Claimant's belief. They are separate issues; I shall deal with them separately and in turn.

Disability

3. The Claimant was accepted by the Respondent ("Dorset") as suffering from the conditions of bipolar disease, obsessive compulsive disorder ("OCD") and stress, though it might normally be thought questionable whether stress as such was a condition rather than a cause. The complaints that the Claimant made were that at various times during his employment by Dorset he had been subject to direct and indirect discrimination on the ground of his disability. I am told that that was subsequently expanded to include allegations that touched on section 15 discrimination (discrimination related to disability) and to the duty upon the employer to make reasonable adjustments.

4. The question of whether a person suffers from a disability that amounts to a characteristic protected by the provisions of the Equality Act 2010 ("EqA") includes section 6, which defines disability in these terms:

"(1) A person (P) has a disability if -

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities."

5. By subsection (6) it is provided that, "Schedule 1 (disability: supplementary provision) has effect". Schedule 1 Part 1, under the heading "Determination of disability", says at paragraph 2, under the heading "Long-term effects", relevantly:

"(1) The effect of an impairment is long-term if -

(a) it has lasted for at least 12 months,

(b) it is likely to last for at least 12 months, or

(c) it is likely to last for the rest of the life of the person affected.

(2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur."

6. The question of how likelihood of recurrence should be assessed in the case of a condition that has ceased to have effect was the subject of the decision of the Court of Appeal in McDougall v Richmond Adult Community College [2008] ICR 431. The Claimant in that case had a condition that caused her substantial adverse effects on her normal day-to-day activities. She recovered sufficiently for that no longer to be the case. The question was whether at that time during that period the disability was likely to recur. The Employment Appeal Tribunal allowed an appeal against the decision below and held that in assessing whether the effect of the Claimant's mental impairment was likely to recur the Tribunal should have taken into account the fact that it had actually recurred after the date of the alleged discrimination but before the Tribunal hearing. This was therefore looking at a factual situation in which at the time of the alleged discrimination there was no contemporaneous substantial adverse effect on day-to-day activities but only arguably a likelihood of recurrence. The Court of Appeal made it clear that the likelihood of recurrence was to be judged not by a Tribunal taking into account matters that had happened in the intervening period between the alleged acts of discrimination and the hearing, but on the basis of that which would have been the viewpoint of the reasonable and objective observer at the time (see, generally, the Judgment of Pill LJ, with which Sedley and Rimer LJJ agreed).

7. Thus in Guidance on matters to be taken into account in determining questions relating to the definition of disability 2011 issued by the Secretary of State under section 6(5) EqA, which a Tribunal is to take into account in determining whether there has been or is a condition of disability, paragraph C4, under the heading "Meaning of 'likely'", says:

"In assessing the likelihood of an effect lasting for 12 months, account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood. …"

8. One of the submissions made to me by Mr Self, who appears on behalf of Dorset, is that paragraph C4 is to be read as endorsing and underpinning an approach to establishing disability that means that in any case, in order to decide what date the disability began, one must ask as at that date whether it is now to be regarded as likely that the disability would continue so that it would last for 12 months or more. The effect of this submission, if well founded, would be that in any case in which there is recognised to have been a disability in which the adverse effects have lasted for more than 12 months it is still necessary for a Tribunal to embark upon an enquiry as to the point at which it was likely that it would do so, on the evidence available as to what was known at the time.

9. I do not accept this. That is because in Schedule 1 Part 1 paragraph 2 to the Equality Act there are three alternative factual situations in which an impairment is described as long-term, the first of which is if it has lasted for at least 12 months. If it has, it is no longer necessary to enquire whether it is likely to last for at least 12 months or for the rest of the life of the person affected. The question of whether and when something is likely to last for at least 12 months and the question of whether it is likely to recur are questions that arise, it seems to me, in the case of a condition that has not yet lasted for at least 12 months or has lasted for that period but has ceased and may recur. It is not, it seems to me, to be a necessary enquiry as to whether there is a disability to approach any and every such question by asking at what point in time it might objectively have been anticipated that a disability that has in fact lasted for at least 12 months would actually do so. The definition is clear enough. It is a definition intended to facilitate the engagement of those with disabilities in occupations. The approach urged by Mr Self is an unnecessary gloss upon the clear wording of the statute. I deal with that at the outset to dispose of that which, taken to its extreme, as I have indicated, I consider has more heresy than accuracy about it.

10. The Tribunal in its decision on disability was said by the Claimant to err in a number of respects, to which I shall turn. It approached the law by mentioning the case of McDougall as well as section 6(1) EqA and Schedule 1 to that Act. At paragraph 28 the Tribunal stated the issue it had to resolve in these terms:

"28. … The issue for the Tribunal to determine is the date from which the Claimant can be regarded as disabled for the purposes of the EQA."

11. It is right that an issue as to date was to be determined. That is because at a Preliminary Hearing in private on 6 January 2014 it was noted that the Respondent had conceded that the Claimant was disabled, by reason of the impairments I have mentioned, from 28 May 2013, but that it did not concede that he was disabled from the end of 2010 until 28 May 2013. The end of 2010 was adopted because that was the date of the first allegation of any substantive act against the Claimant that he attributed to his disabilities. As the Tribunal stated it, the law was not faithfully set out. The question whether the Claimant "can be regarded as" should have been expressed as "was". Mr Self acknowledges this. He describes the decision as to disability as both clumsy and one in which the Tribunal conflated the knowledge of the employer that the Claimant was disabled with the question it had to resolve, namely that posed by section 6 EqA.

12. When I first read the Judgment, it had appeared to me that there was some force in the Claimant's criticism that the Tribunal dealt rather with the date of knowledge of the Respondent that he was disabled than that which was the issue, which was when he was first disabled. There are frequent references, as Mr Self's concession acknowledges, to the date at which it could "sensibly be appreciated" (paragraph 29); when it was "clear to the Respondent" (paragraph 30); matters "considerably short of putting the Respondent on enquiry" (paragraph 32); the point "when the Respondent could take a view" (paragraph 34); and, a return to the same formulation as that with which the Tribunal began, whether the Claimant "can properly be regarded as a disabled person" (paragraph34). All those suggested to me that the Tribunal was in part at least considering a question that was at this stage not one that it had been required to address.

13. However, Mr Self has persuaded me in the course of his submissions that the Tribunal did deal with the essential points with which it had to deal in determining whether the Claimant was disabled and that the infelicities of language do not indicate here an erroneous approach to the central enquiry. After all, the words "can be regarded as disabled" may be apposite where the Tribunal has the task of fixing a date from which the Claimant is held to be disabled for the purposes of the litigation. His case was that he did not precisely know when his disabilities had the effect which the statute comprehends. The evidence that ultimately persuaded the Tribunal to the date of 28 May 2013 was in part no doubt the concession of the employer, but there was material to support it in a report of 29 May from Dr Johnson, in which he said that he would anticipate the Claimant being considered as protected under the EqA as a result of his ongoing medical condition and observed that the condition "can have substantial impact upon his day to day activities", an assertion that, as has been pointed out to me, falls short of saying that it actually did.

14. The Tribunal set out some of the evidence it considered in the early passages of its decision. The Claimant had first been employed by the police in August 2008. In the application he made for that job at that time he did not declare any disability or impairment though the opportunity to do so was expressly offered to him. In 2011 he applied for a different post internally and declared himself fit. At that time he was specifically asked whether he had any medical condition or disability, and he replied that he had not. The question was focused in a way that would help Dorset to fulfil its duty to make reasonable adjustments if need arose. On 21 October 2011 he was specifically offered the opportunity of saying that he was disabled. There were no absences from work before December 2012 that might have alerted any observer to a risk that the Claimant might be suffering from a disability or as to the fact, if it were the fact, that he was suffering substantial adverse effects on his day-to-day activities. He had two days' absence only. They were in April and August 2012. They were, respectively, for toothache; and vomiting and nausea. The Tribunal had the whole of the medical notes relating to the Claimant that the Claimant was prepared for them to have. I use that formulation because a report from a Dr Bashir, which he had had more recently, was not placed before the Tribunal.

15. Mental illness was first mentioned in those notes on 24 August 2012. The Claimant did not seek any medical attention at that time. In mid-December 2012 he was seen by a doctor who thought him to be suffering from OCD. At that stage a sick note was generated, and he remained off work. Mr Self's submission is that the Tribunal therefore should have considered any date between December 2012 and 28 May 2013 as being the date at which the Claimant became disabled; since the date was not clearly known, it was not inappropriate to use the expression "can be regarded as disabled", as the Tribunal did. The Claimant's submission was that he had suffered from the conditions for a number of years, since probably around 2001. "Suffering from conditions" does not in itself satisfy the definition in section 6. If "condition" is equated to "impairment", it has nonetheless to be shown that it has a substantial long-term adverse effect as required by the statute. As has often been observed, both the Disability Discrimination Act 1995 while it was in force and now the EqA 2010 adopt a social and not a medical model to understand and protect those who have disabilities. It has therefore to be shown by a Claimant that the Claimant has suffered the practical functional effects to which section 6(1) refers.

16. The Claimant had given written evidence to the Tribunal in two statements. The first of those, dated 17 February 2014, headed "Disability, statement as to effect", said in its first sentence that it provided details as to the effect of current disabilities as of February 2014. As Mr Self points out - rightly, in my view - that is of no assistance in knowing what effects there were at an earlier time between December 2012 and May 2013. In a later statement, dated 31 March 2014, headed "Disability, preliminary matters", the Claimant did seek to say more about his condition. He described then how his employer, he thought, should have behaved towards him and how it should have been aware of his "disability". He did not say anything specific about the way in which the conditions that were subsequently diagnosed had at that time affected him.

17. In its factual summary the Tribunal said (paragraph 11):

"11. …

The Tribunal considers that the Claimant's case is put on the basis that the conditions of OCD, bipolar and stress all combine to make day-to-day activities difficult without assigning a difficulty to any one condition." (Emphasis added)

18. The Tribunal here were recording a lack of specificity in the evidence as to the effects of the condition. At paragraph 31 the Tribunal said this in its conclusions section:

"31. The Tribunal has paid careful regard to the Claimant's evidence and accepts that for some considerable years the Claimant has had mental illness difficulties which for the most part have not required treatment. There is no cogent medical evidence or other factual evidence that shows that those difficulties substantially impacted on day-to-day activities or to the degree necessary to acquire protection."

19. That is a finding of fact. It is a finding of fact that deals with the definition in section 6. It looks at the question of whether there was an impairment and the effect of that impairment. It accepted the underlying medical condition; it did not, however, think that there had been sufficient evidence to show the necessary "substantial adverse effect" on the Claimant's ability to perform normal day-to-day activities.

The Appeal

20. The appeal as initially drafted was rejected by Simler J on the sift on the basis that paragraph 31 was a finding of fact that could not be said to be perverse. Following a Rule 3(10) Hearing before Slade J the Claimant was permitted to advance the claim on amended grounds. The amended grounds argued that the Tribunal went beyond the stated purpose of the hearing, which, the Claimant claimed, was to decide whether he was a disabled person. That is an inadequate understanding of the Tribunal's position. As I have pointed out, it was conceded that he was disabled at the time of the hearing and ever since 28 May 2013. That was not in issue. Plainly, what was in issue was when the disability began. The Claimant went on to argue that he had provided evidence to the Tribunal that remained undisputed and showed that he was likely to be shown to be protected as a disabled person for a period which could have amounted to at least ten years prior to 2012 (ground 15) and the Tribunal had failed to take adequate notice of medical evidence.

21. Next, substantially, the Claimant argued that the Tribunal had in essence asked the wrong question. It had asked when the employer knew, though the employer's knowledge was not at this stage of the hearing relevant. It is plain that the date of knowledge and whether an employer knows of disability is always relevant to an enquiry under section 15. It is likely to be relevant and determinative in respect of the duty to make reasonable adjustments, because the adjustments are those that it is reasonable to have to make and it is unlikely that there will be many situations in which it is likely that an employer who knows nothing of the disability should be required to make adjustments for it. It is less likely to be relevant to direct and indirect discrimination, though it is possible to see that at least conscious discrimination of a direct kind could not occur if the employer said to have discriminated was unaware that there was a disability. That does not, however, entirely dispose of the possibility of direct discrimination.

22. It is sufficient to say that the state of knowledge of the employer was not relevant to the particular enquiry that the Tribunal was engaged upon. As I have already said, there is much in the way in which the Tribunal approached the matter to suggest that the Tribunal did have in mind the date that the employer knew of the disability. I cannot, however, accept, in the event, that the Tribunal was not entitled to come to the view it did at paragraph 31. There was considerable support, which I have set out earlier in this Judgment, for it to reach that conclusion upon the basis it expressed. It is well recognised that Tribunal Judgments cannot be expected to be the finest pieces of legal draughtsmanship. Infelicities and awkwardness of expression must be excused. Part of the awkwardness of expression here may simply be because the Tribunal had the task of fixing a date that could have been any date, picked somewhat at random perhaps, between the two possibilities that Mr Self was proposing - if not at an earlier date if the Claimant had satisfied the Tribunal on the evidence that it should be.

23. In the event, I have come to the conclusion that Simler J's view was entirely correct and that despite the "clumsy" - as Mr Self would have it - nature of the wording, the Tribunal's decision was sufficient. The appeal therefore insofar as it relates to the question of disability must be rejected.

24. I should add that in part of his submissions to me the Claimant complained that the Tribunal had not explained sufficiently why it came to the conclusion it did. As to that, in respect of this head of claim, I consider it did, because it had set out the evidence before it at an earlier stage, it had commented as it did in the passage that I have partly italicised above, and it was expressing the absence of evidence, which it is very difficult for most Courts or Tribunals to explain any more sufficiently than to say that there is insufficient evidence. Since it has not been shown to me that there was any focused, direct evidence that would have satisfied the section 6 requirement, I consider that the Tribunal was justified in reaching the conclusion it did.

25. I add only this further remark. Mr Harron's submissions have been clear, cogent and impressive. He has made the point that disabled persons who suffer from mental disabilities are frequently reluctant to the point of silence to say anything to their employers about it, therefore an absence of complaint to their employer or for that matter to their medical advisers over the years should not be held against them. It should be understood as being an effect of their condition. I would hope and expect that Tribunals, whose Judges do have some training in the recognition and handling of those with mental disabilities, would be fully alert to this in any case in which it might be relevant. However, it cannot simply be a solvent by which an absence of evidence over the years as it were becomes from other sources positive evidence that there was such a condition. The absence of evidence, though it might be explained, cannot amount to a presence of evidence, and the Tribunal has ultimately to reach its conclusion on the evidence before it.

Belief

26. The Tribunal was referred by the parties to one case that had considered the proper approach to belief. The starting point necessarily is section 10 EqA 2010. By section 10(2):

"(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief."

27. This case does not concern religion. Belief is qualified by the word "philosophical". In the case of Grainger plc and Ors v Nicholson UKEAT/0219/09 Burton J gave extensive consideration to the meaning of "philosophical belief". He considered previous House of Lords authority (in particular that of R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246 HL), a number of authorities in the European Court of Human Rights and the case of Eweida v British Airways plc [2010] EWCA Civ 80, which at that stage was at EAT level. It is unnecessary to cite extensively the Judgment save to note that at paragraph 24 he said this:

"24. I do not doubt at all that there must be some limit placed upon the definition of "philosophical belief" for the purpose of the Regulations [I interpose to say that the cases alleging discrimination on the grounds of religion and belief were then brought under those Regulations; the formulation I have to address is that in the EqA 2010, where the same words are used, so far as material], but before I turn to consider Mr Bowers' suggested such limitations, I shall endeavour to set out the limitations, or criteria, that are to be implied or introduced by reference to the jurisprudence set out above:

(i) The belief must be genuinely held.

(ii) It must be a belief and not, as in McClintock [v Department of Constitutional Affairs [2008] IRLR 29], 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 behaviour.

(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.

(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 (paragraph 36 of Campbell [and Cosans v United Kingdom [1982] 4 EHRR 293] and paragraph 23 of Williamson)."

28. The five criteria were adopted by the Judge in his determination as to whether the belief qualified for protection as a philosophical belief. It set out at paragraph 36 the five criteria I have just stated. It then said at paragraph 37 that it accepted the Claimant's assertion that he was genuinely motivated by a desire to save money in the public sector. It thus accepted that the first of those criteria had been met. At paragraph 39 it said, so far as material:

"39. … Whilst this Tribunal is satisfied that the Claimant's belief is genuinely held it is not on the particular facts of this case, a belief as to weighty and substantial aspects of human life and behaviour and its level of cogency, seriousness or cohesion importance is entirely confined to the workplace rather than human life and behaviour in general [sic]. In the Tribunal's judgment the belief contended for is not so much a belief but a set of values which manifest themselves as an objective or goal principally operating in the work place. The fact that the belief is worthy of respect in a democratic society is not challenged by the Respondent. In the judgment of the Tribunal a "philosophical belief" must have a status or cogency that is similar to that of a religious belief."

29. The Tribunal thus ticked the fifth criterion but rejected criteria two, three and four. It also added, if true addition it was, that the philosophical belief must have a status or cogency similar to that of a religious belief, thereby saying, in effect, that it did not.

30. As to those matters the Claimant complains first that the criteria relate to philosophical belief whereas recent jurisprudence from the European Court does not require the belief to be philosophical; that restriction therefore falls. He submits that it is therefore too narrow an approach to determining whether his belief should qualify for protection. Secondly, he argues that the threshold applied by the Tribunal was simply too high; the threshold should be a relatively low one given the purposes for which the protection applies particularly by reference to Article 9 of the European Convention on Human Rights and Fundamental Freedoms. Thirdly, he argues that the reasons given for the conclusion expressed at paragraph 39 are insufficient for him to understand why the Tribunal decided as it did.

31. The Claimant relies in particular upon Eweida and Ors v United Kingdom [2013] 57 EHRR 8. That was the European Court's decision on the case of a practising Coptic Christian who worked for British Airways. For some time she had not displayed the cross that she wore but then determined to do so as an outward manifestation of her belief. The manifestation was not a matter required in general by her belief, but the European Court determined, in contrast to the decisions made by the domestic courts, that her Article 9 rights had sufficiently been interfered with and that to require her not to wear a cross doing the job she did was not a proportionate means of achieving the legitimate aim that the employer sought to achieve. The Claimant noted in particular the general principles set out under the Convention in the Judgment of the Court under paragraphs 79 to 82, and in particular paragraph 81.

Discussion

32. Mr Self accepts that the word "philosophical" does not appear in Article 9 in respect of qualifying belief. Nonetheless, he maintains that the effect of Eweida (see paragraph 81) is such that the criteria set out in Grainger do encompass the meaning of belief as it is to be applied in domestic law in a manner that is consistent with the European authorities. I accept that the European authorities do not leave belief as a matter of casual opinion but require it to have the characteristics that are in essence set out by Burton J at paragraph 24 in Grainger. Indeed, those characteristics were recognised by the Attorney General in what she said to Parliament in respect of the removal of the word "similar" from in front of belief when the wording was changed in the statutory provisions. The substance of that which Lord Nicholls of Birkenhead in agreement with their other Lordships in Williamson said at paragraph 23 is in these terms:

"23. Everyone … is entitled to hold whatever beliefs he wishes. But when questions of "manifestation" arise, as they usually do in this type of case, a belief must satisfy some modest, objective minimum requirements. These threshold requirements are implicit in article 9 of the European Convention and comparable guarantees in other human rights instruments. The belief must be consistent with basic standards of human dignity or integrity. Manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection. The belief must relate to matters more than merely trivial. It must possess an adequate degree of seriousness and importance. As has been said, it must be a belief on a fundamental problem. With religious belief this requisite is readily satisfied. The belief must also be coherent in the sense of being intelligible and capable of being understood. But, again, too much should not be demanded in this regard. … Depending on the subject matter, individuals cannot always be expected to express themselves with cogency or precision. Nor are an individual's beliefs fixed and static. The beliefs of every individual are prone to change over his lifetime. Overall, these threshold requirements should not be set at a level which would deprive minority beliefs of the protection they are intended to have under the Convention: see Arden LJ [2003] QB 1300, 1371, para 258."

33. The question of the approach to be taken does not rest, however, upon case law alone, however authoritative cases such as Williamson are given that it considered the extant European authority at the time. It extends to the guidance to the EqA and the Employment Statutory Code of Practice 2011 under the heading "Meaning of belief", which sets out (paragraph 2.59), "For a philosophical belief to be protected under the Act …", and then recites the five criteria precisely as Burton J had identified them to be. Since therefore the Code of Practice is to be taken into account by a Tribunal in reaching its decision, then although this Tribunal did not specifically advert to it, it is further support for the approach it took and a further reason to think that there is no material difference between the domestic approach and that under Article 9. For that reason, I reject this argument that the Claimant advances.

34. As to the question of threshold, however, and the question of sufficiency of Reasons, I take a different view. It is an error of law not to adopt the proper approach. The proper approach to determining whether or not there was a qualifying belief is not simply to set out the wording in the Code of Practice or that in paragraph 24 of Burton J's decision in Grainger, but to have regard also to the way in which the criteria there set out are to be applied, as, for instance, indicated by the speech of Lord Nicholls, whose words I have quoted above. He made it clear that the belief must relate to matters more than merely trivial. That is a hint towards the approach that regards as substantial that which is more than merely trivial. The fact that he meant it in that sense is indicated by the use of the word "again" in the expression, "But, again, too much should not be demanded in this regard", when talking about the meaning of "coherence". "Coherence" is to be understood in the sense of being intelligible and capable of being understood. Clearly, the belief that the Claimant had would meet that test if that test had been applied in isolation. The paragraph ends with a plea not to set the threshold requirements at too high a level. The Tribunal did not indicate in its decision that it had had particular regard to those matters that related to approach. When that is coupled with the absence of any description as to what it found to lack weight, or not to be in respect of a substantial aspect of human life and behaviour, it has not said sufficient to persuade me that an error of law may not have been committed.

35. In short, I consider that in respect of the third and fourth criteria what this Tribunal has said is insufficient. I accept that it is not self-evident, to the point of it being perverse to conclude otherwise, that the Claimant's belief had to be a protected one - it was, in my view, open to the Tribunal to conclude that it might not have been - but the Tribunal had to approach this question in its assessment by ensuring that it was not setting the bar too high. In paragraph 39 as to the second criterion it said that the belief contended for was:

"39. … not so much a belief but a set of values which manifest themselves as an objective or goal principally operating in the work place. …"

36. Mr Self confessed that he could not understand why a belief and set of values were not in this context substantially equivalent to each other. This no doubt is intended to be a reference to a case such as that of McClintock. McClintock was a case in which a registrar had a view as to the effect of allowing same-sex partners to adopt children, but he took this view not as a matter of principle but as a matter of that which the evidence then available showed to him. It was not so much therefore a matter of belief as of opinion based upon the facts then available to him. There is no discussion by this Tribunal that could place the belief of this Claimant into that category. That is not to say that the argument may not be made and may not succeed, but it is certainly not obvious why it would. Moreover, the words "which manifest themselves as an objective or goal principally operating in the work place" are also problematic. An objective or a goal may be the result of adopting a particular belief. I confess I do not fully understand what the Tribunal there intended to say.

37. The whole of paragraph 39 gave rise to a further point taken by the Claimant. That was that the Tribunal had introduced a further hurdle for him to navigate: it had excluded a belief that operated merely in the workplace. I do not accept that that is an error of law. Though the Claimant refers to it as a spatial consideration, Mr Self's retort to it is, in my view, that to be accepted, which is 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 in summary by Burton J and explored in greater detail in paragraph 23 of Lord Nicholls's speech in Williamson. After all, he was asking that the belief be a belief on a fundamental problem. That might be thought to exclude beliefs that had so narrow a focus as to be parochial rather than fundamental.

38. I accept Mr Self's argument that if the Tribunal can be shown to be right on the absence of any one of those three criteria upon which it founded its decision its conclusion would stand. It follows, however, from what I have said that in respect of each I cannot be satisfied that it adopted the appropriate approach. I consider it did not give sufficient reasons in this context. The reasons are not otherwise explained by that which it described in its factual findings. Although due allowance must be made for the nature of many Tribunal Judgments, that cannot in this case prevent my concluding that there is here an error of law, taking everything together.

Disposal

39. The parties were agreed that the matter would have to be remitted if I were to come to findings such as I have. They disagree as to whether the case should be remitted to the same Judge for rehearing. By reference to the familiar authority, Sinclair Roche & Temperley v Heard [2004] IRLR 763, paragraph 46 of the Judgment of the Appeal Tribunal, the Claimant argued that the decision was totally flawed and the Judge should be denied a second bite. If he had already made up its mind on the face of it, it would be difficult, if not impossible, to change it. Mr Self argued that proportionality was relevant - this had been a two-day hearing below - but, although he thought that the passage of time might stand against the decision, I do not entirely agree with him on that. It may be that he was attempting to be as realistic as he submitted, but it seems to me that this is a case that of its nature a Tribunal is likely to remember.

40. Be that as it may, even if I were wrong on that and he were right, I have come to the conclusion that the decision is not totally flawed. It is inadequately expressed - it may have been, but not necessarily was, one reached by adopting the wrong approach or without reference to the leading authorities - but I can, as it seems to me, have confidence in what is set out at paragraph 46.4 in Heard with regard to Tribunal professionalism. I should assume, and I do assume, that the Judge is capable of a professional approach in dealing with the matter on remission. I have said much in this Judgment that may help to guide him, although the principal authorities remain as I have mentioned - those of Grainger, to which he had particular regard, but also and importantly to Williamson in the passages that I have mentioned - and it seems to me that the bar should not be set too high, although plainly the Judge has to bear in mind that for a belief to qualify as one that is philosophical it must at least reach a certain measure of seriousness and cogency as indeed the Grainger criteria require.

41. Accordingly, I shall remit the matter for fresh decision by the Judge below.

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