Independence as a “philosophical belief”?

Kathryn Moorhouse, senior employment solicitor at Lupton Fawcett.
Kathryn Moorhouse, senior employment solicitor at Lupton Fawcett.

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Most will remember the referendum which took place in 2014 to decide whether Scotland should continue to be part of the UK or whether it should be an independent country.

There was much support for the independence campaign but the overall majority decided that Scotland should remain part of the UK.

Why has the question of Scottish independence raised its head again? An Employment Tribunal has recently ruled that belief in an independent Scotland is a philosophical belief similar to religion and is protected under the equality legislation.

Chris McEleny, the SNP group leader on Inverclyde Council, was working as an electrician at a Ministry of Defence plant when he announced his bid to become his party’s Deputy Leader. The MoD later revoked his security clearance and suspended him from his job. Mr McEleny argued that this was because of his philosophical belief. He subsequently resigned and pursued claims in an Employment Tribunal.

Mr McEleny claimed direct discrimination, arguing that he had been treated less favourably by the MoD because of his philosophical belief in Scottish independence and the social democratic values of the SNP.

The question the Tribunal had to determine was whether there was a distinction between a political opinion (which was not capable of protection under equality legislation) and a philosophical belief (which could be capable of protection).

The MoD had argued that support for Scottish independence did not extend far enough beyond Scotland to warrant the status of a philosophical belief. However, the judge found that sovereignty and “self-determination” were “substantial aspects of human life” and “how a country should be governed is sufficiently serious to amount to a philosophical belief”.

The Tribunal concluded that Mr McEleny’s belief in an independent Scotland amounted to a philosophical belief and was therefore a protected characteristic meaning that he could not be discriminated against because of those beliefs. Mr McEleny was clear that he did “not believe in Scottish independence because it will necessarily lead to improved economic and social conditions for people living in Scotland. It is a fundamental belief in the right of Scotland to national sovereignty”.

There is some concern that this ruling could potentially open the gates for individuals to claim that their belief that the UK should leave the European Union, or vice versa, is a philosophical belief (rather than a political opinion), and that they should therefore not be treated any less favourably than their colleagues because of those beliefs.

If an employer is found to have discriminated against any of its employees, compensation for discrimination is uncapped. A word of warning, therefore, to keep an eye out for any “workplace banter” surrounding anyone’s Brexit vote. This may not necessarily be harmless teasing, but could amount to discrimination.

For further help or advice, please contact Kathryn Moorhouse, senior solicitor at Lupton Fawcett, who can be contacted on 0113 2802231 or kathryn.moorhouse@luptonfawcett.law.