When is a belief protected and is English nationalism capable of such protection?

Is English nationalism considered a protected belief? This question was brought to light in the recent Employment Tribunal case of Thomas v. Surrey and Borders Partnership NHS Foundation Trust (2024). In this article, Bronya Greatrex delves into the details of the case to explore its implications.

Under the Equality Act 2010, there are nine protected characteristics. These are grounds upon which people are protected from discrimination. One of these nine protected characteristics is ‘religion or belief’.

Whilst many religions are widely recognised, it can be more difficult to determine when a belief held by a particular individual is capable of being protected under the Equality Act. Particularly when this right seems to interfere, in some way, with the rights of others.

What does the law say?

The European Convention on Human Rights (ECHR) gives people a right to:

• Freedom of thought, belief and religion – Article 9;
• Freedom of expression – Article 10; and
• Freedom of assembly and association – Article 11.

However, Article 17 goes on to prohibit an abuse of these rights. Specifically, it states:

“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”.

This was re-enforced in Norwood v UK (2004), in which it was found that anti-Muslim views are not protected by Article 10 ECHR.

In the case of Grainger plc v Nicholson (2010), the Employment Appeal Tribunal (EAT) set out five criteria for determining whether a belief should be protected as follows:

1. The belief must be genuinely held;
2. It must be a belief and not an opinion or viewpoint based on the present state of information available;
3. It must be a belief as to a weighty and substantial aspect of human life and behaviour;
4. It must attain a certain level of cogency, seriousness, cohesion and importance; and
5. It must be worthy of respect in a democratic society, not be incompatible with human dignity, and not conflict with the fundamental rights of others.

The Courts have been clear that this does not mean that only palatable beliefs are capable of protection. In the case of Redfearn v UK (2013), it was found that Article 11 ECHR is capable of protecting offensive views.

Further, in Forstater v CGD Europe (2022), the EAT found that there should be a high threshold for excluding beliefs from protection. In fact, it stated that only beliefs akin to Nazism or totalitarianism should be excluded.

Thomas v Surrey and Borders Partnership NHS Foundation Trust (2024)

The recent case of Thomas sheds some further light on when beliefs will or will not be protected.

Mr Thomas was engaged as a consultant for Borders Partnership NHS Foundation Trust. After approximately three months, the Trust terminated his assignment after discovering that he had failed to disclose an unspent criminal conviction.

Mr Thomas brought a claim against the Trust in the Employment Tribunal. He alleged that the real reason for terminating his assignment was that he had an affiliation with the English Democrats political party. He therefore alleged discrimination against his belief in English nationalism.

At a preliminary hearing, the Employment Tribunal concluded that a belief in English nationalism alone was potentially capable of being a protected belief. However, it concluded that Mr Thomas’ belief in English nationalism also included anti-Islamic views which included that Muslims should be forcibly deported from the country. It was this disdainful and prejudicial focus on Islam that the ET concluded meant that his belief was not protected under the Equality Act. In its view, the belief had failed the 5^th Grainger criterion – i.e. it was not worthy of respect in a democratic society.

Mr Thomas appealed to the EAT but his appeal was dismissed. Its view was that the ET was correct in finding that Mr Thomas’ belief in English nationalism was not a protected belief. Their reasoning was as follows:

• The belief in forcible removal of Muslims from the country was incompatible with Convention rights;
• It was analogous to beliefs excluded in the Norwood case; and
• It fell within the Article 17 ECHR prohibition.

Whilst the language used by Mr Thomas did not incite violence towards Muslims, it did essentially represent a view that there was no place in British society for Muslims or Islam. The EAT noted that this was not dissimilar to the views of Nazism, that there was no place within German society for Jews.

Where does this leave us?

Whilst the high threshold for excluding beliefs from protection remains, this case shows that the decision in Forstater is not quite as narrow as some people had thought.

At the very least, anti-Islamic views involving a belief in the forcible deportation of Muslims are not protected beliefs.

When considering allegations of belief discrimination, it is important to give careful consideration to differentiating between protected beliefs and those that would fall within the prohibition on protection contained within Article 17 ECHR. This is likely to be a fact sensitive assessment.

Contact us

Bronya Greatrex is an associate in our employment law team. If you have any questions or concerns related to the points raised in this article, or have an employment law query we can help with, please get in touch.