What relevance does the EAT’s ruling last week in the Maya Forstater case have to do with the so-called anti-Vaxx movement? On the face of it, very little but there is a dimension to this ruling which widens the net to views like that. A reminder, as was widely reported last week, the EAT has ruled that a belief that there are only two biological sexes in human beings, and that it is impossible to change sex, does qualify as a ‘philosophical belief’ within the meaning of s10 of the Act, and so is protected.
A lot has been said and written about the Forstater case in the past few days but perhaps the most important aspect of this ruling is what it says about the scope of a philosophical belief. A reminder – the criteria which must be satisfied for a particular belief to qualify as a ‘philosophical belief’ were established in a case called Grainger v Nicholson. In that case the EAT set out 5 criteria, all of which must be satisfied, and they are on-screen there for you. In the Forstater case it was the fifth criterion that was disputed, which is always likely to be the most contentious one because it can involve a conflict between competing beliefs or the rights of others. At first instance the tribunal judge decided this test was not satisfied and he dismissed the claim accordingly. He said the claimant’s views were ‘absolutist’ and ‘not worthy of respect in a democratic society’. Crucially, that has been rejected as wrong by the EAT. At paragraph 79 of the judgement the EAT says Grainger 5 will only exclude the most extreme beliefs akin to Nazism or totalitarianism or which incite hatred or violence. So, on the face of it, that would not exclude anti-Vaxx beliefs, for example. But is that right? To get a view on that I spoke to Anne Sammon who joined me by video-link to discuss the issue. I started by asking Anne what she makes of where the bar is now set for Grainger 5:
Anne Sammon: “That’s very low and I suppose the really important and key part of this decision is that most beliefs are likely to fall as being not excluded by Granger 5, which is not being worthy of protection. The bar that has now been set is relatively high to exclude a belief on that basis so we're looking at things that are akin to Nazism and totalitarianism. The Employment Appeal Tribunal referred to the idea of a belief that is tantamount to the destruction of other people's rights. That's where we start kind of excluding it on the basis of not being worthy of protection.”
Joe Glavina: “When the original tribunal decision came out there were a number of commentators suggesting that anti-Vaxx beliefs wouldn’t satisfy Grainger 5 but with the EAT’s approach – only excluded if akin to Nazism or totalitarianism – that probably would include the anti-Vaxxers don’t you think?”
Anne Sammon: “I think it all depends on the basis for an anti-Vaxx view and I think there's an interaction here between Grainger 4 and Grainger 3, and Grainger 3 is about effectively having an impact on the way in which you live your life and how you do how you carry out the day to day tasks and I think the issue for some within the anti-Vax movement is that their objection is not necessarily to all vaccinations but to the COVID-19 vaccination. So, one of the views that I've heard espoused quite a few times is concern that this vaccination has kind of progressed so quickly that we've gone from development to implementation stage, that people are concerned about the safety of the vaccination. Now, there's lots of evidence out there at the moment that suggests the vaccine is entirely safe and so you get into arguments about whether or not that is a cogent belief, but there's also that issue of, well, if it's just the COVID-19 vaccination that you object to, does that really satisfy the Grainger criteria? Now, there are a whole host of reasons for people being within the anti-Vaxx movement and so I suppose one of the difficult things in this area more generally is it does involve looking at the specific individual's belief and what they believe and how they believe it in order to assess whether or not they merit protection. So, it's not one where we can say all anti-Vaxxers are covered, or all anti-Vaxxers are excluded, it will require that kind of delving into what does that one individual believe and does that belief that they hold actually fulfil the whole Grainger criteria?”
Joe Glavina: “I can imagine a lot of managers struggling with this. I’m thinking of a clash of views between, say, one or two anti-Vaxxers on the one hand, and on the other hand, a majority of the staff wanting everyone to be vaccinated with managers caught in the middle policing it. How do you manage that?”
Anne Sammon: “I think it's the same as any difficult conversation. There are lots of difficult conversations going on in the workplace at the moment in terms of different people having different views on potentially controversial subjects and I think it's all about, first of all, you know, employees are generally entitled to hold those views. It's all about the way in which they manifest those views that tends to be the issue and so if an employee is deliberately upsetting, inciting, other people, even if the belief is protected, that doesn't mean that the employer has to tolerate it. So, I can think of an example, for example, within the confines of the veganism movement of one client who had an employee who was vegan who felt very strongly about it, and that's absolutely fine, potentially could be a protected belief under the Equality Act, but their way of manifesting that belief was to distribute leaflets that had slogans like ‘meat is murder’ on the desks of their colleagues at lunchtime whilst they were eating that their lunches. Now, it's that manifestation of the belief that the employer chose to discipline and that is entirely acceptable because it was amounting to harassment of other employees. So, it all comes down to drawing that distinction between are we disciplining somebody because of a belief that they hold or are we disciplining them because of the way in which they're manifesting that view?”
On the subject of vaccinations, Anne has been talking to this programme about vaccine passports and the implications of the proposed ‘COVID-status certification’ scheme which, she says, is a discrimination risk for employers. That programme is available for viewing now from the Outlaw website.
- Link to EAT judgement: Forstater v CGD Europe & Others