United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARK HILL (One of Her Majesty's Counsel) Instructed by: Greater Manchester Police – Legal Services Chester House Boyer Street Stretford Manchester M16 ORE
For the Respondent	MR A POWER (Respondent)


 


SUMMARY

RELIGION OR BELIEF DISCRIMINATION

Whether belief in spiritualism and the philosophical belief in life after death and psychic powers falls within the 2003 Religion and Belief Regulations. The ET finding that it did. Upheld on appeal.


 


HIS HONOUR JUDGE PETER CLARK

1. This case is proceeding in the Manchester Employment Tribunal. The parties are Mr Alan Power, Claimant and Greater Manchester Police Authority, Respondent. I shall so describe them. This is an appeal by the Respondent against the Judgment of Employment Judge Russell, sitting alone on 3 August 2009 at a Pre-Hearing Review (PHR), promulgated with reasons on 27 August 2009, in which he ruled that:

"(a) the claimant's beliefs upon which he bases his claim are capable of being a belief for the purposes of the Employment Equality (Religion or Belief) Regulations 2003."

Background

2. The Claimant was employed by the Respondent from 6 – 24 October 2008 as a trainer of Special Constables. His employment was terminated by the Respondent by a letter dated 24 October which, I see from the Respondent's Form ET3, gave two reasons for dismissal, namely the Claimant's work with neighbouring police forces and his current work in the psychic field.
3. Against that dismissal decision the Claimant appealed internally. That appeal was dismissed by a letter dated 8 April 2009.
4. On 21 April he presented a Form ET1 to the Employment Tribunal. His complaint was that in dismissing him the Respondent had discriminated against him on the grounds of his religious or philosophical beliefs.
5. In resisting the claim the Respondent contended, among other things, at paragraph 13 of the Particulars attached to their Form ET3:

"13. It is the Respondent's understanding that the Claimant's alleged philosophical belief is that of life after death, known as 'Psychics'. The Respondent does not accept that an alleged philosophical belief in Psychics amounts to a religious or philosophical belief for the purposes of regulation 2(1)(b) of the Employment Equality (Religion or Belief) Regulations 2003 as amended by section 77 of the Equality Act 2006."

6. In the light of that pleading a PHR was directed to determine, as a preliminary issue:

"whether the Claimant's beliefs are matters coming within the 2003 regulations".

7. Prior to that hearing the Claimant delivered Further Particulars of his claim dated 1 July. In that document he indicated (para (2)) that his claim related to the second of the Respondent's stated reasons for dismissal, i.e. 'current work in the psychic field'.
8. At para (4) he said:

"I am aware that the Respondent is aware of my Religion and Beliefs

My Religion = Love

My Beliefs are those of Spirituality = i.e. the "Spirit" or "motivating energy" that animates living things survives physical death."

The Employment Tribunal decision

9. Judge Russell heard oral evidence from the Claimant only and made the following findings of fact at para 3 of his Reasons:

"3.1 In his claim form the claimant states that he had a "belief in psychics and their usefulness in police investigations etc." He adds that "I now seek to have it confirmed that a philosophical belief in physics (sic) and their usefulness is not a justification for dismissal". Yet further he states that "life after death is a widely held religious and philosophical belief";

3.2 In a letter of 1 July 2009 to the Tribunal the claimant stated that "I am aware that the respondent is aware of my Religion and Beliefs. My Religion = Love. My Beliefs are those of Spirituality = i.e the "Spirit" or "Motivating energy" that animates living things survives physical death."

3.3 At the pre-hearing review the claimant gave evidence that spiritualists believe that the dead can be contacted through mediums or psychics (and which terms can be used interchangeably). He stated that spiritualism is both a religious belief and a philosophical belief.

3.4 The claimant is a member of a Spiritualist Church. He has regularly attended at a Spiritualist Church from the ages of 15 to 21 and from 1980 to the present day. He gave evidence that Spiritualist Churches have ordained ministers and that hymns are sung at church services.

3.5 The claimant produced a copy of an article dated 12 December 2004 written by the religious correspondent employed by the Telegraph Newspapers. This records that the first Spiritualist Church was established in England at Keighley in Yorkshire in 1853. It further records that in the 2001 census it was found that spiritualism, the belief that the dead can be contacted through mediums, was the eighth largest faith group in Britain with 32,404 people claiming allegiance.

3.6 When cross-examined the claimant gave evidence that in his letter of 1 July 2009 he stated that his religion was "love" because he believed in a God of Love rather than a God of Retribution."

10. Having made those findings of fact he directed himself in law in accordance with the judgment of Elias P in McClintock v DCA (UKEAT/0223/07/CEA 31 October 2007 Unreported) at paragraph 41, where the former President said this:

"41. The test for determining whether views can properly be considered to fall into the category of a philosophical belief is whether they have sufficient cogency, seriousness, cohesion and importance and are worthy of respect in a democratic society: see Campbell & Cosans v United Kingdom (1982) 4 EHRR 293."

11. At paragraph 5 Employment Judge Russell concluded that, in common with other spiritualists, the Claimant believes in the existence of a God, that there is life after death and that the dead can be contacted through mediums.
12. The Judge was satisfied that such beliefs are capable of being religious beliefs for the purposes of the 2003 Regulations, and that, further or alternatively, he was satisfied that the Claimant's beliefs that there is life after death and the dead can be contacted through mediums are worthy of respect in a democratic society and have sufficient cogency, seriousness, cohesion and importance to fall into the category of a philosophical belief for the purposes of the 2003 Regulations.
13. Judge Russell directed a full hearing of this claim to be heard on 23 and 24 November 2009.

The Law

14. Paragraph 2(1) of the 2003 Regulations, as amended by s.77(1) of the Equality Act 2006, provides as follows:

"2(1) In these Regulations –

(a) "religion" means any religion,

(b) "belief" means any religious or philosophical belief,

(c) a reference to religion includes a reference to lack of religion, and

(d) a reference to belief includes a reference to lack of belief."

15. McClintock is the case of a J.P. sitting on the Family Panel who objected to the prospect of placing a child for adoption with a same sex couple. His claim failed on the facts. He had not shown that his objections were rooted in any religious or philosophical belief. Although he was a practising Christian he does not appear to have advanced as a relevant belief, for example, that homosexuality was a sin or some such belief. Thus the preliminary issue determined in the present case did not arise in McClintock and in any event that case pre-dated the amendment to reg. 2(1) effected by the 2006 Act. Further, the claim of direct discrimination, the only issue at the Full Hearing directed by Judge Russell in the present case, was withdrawn on appeal; see McClintock, para. 31.
16. This appeal came before me on the paper sift after Burton J had heard the employer's appeal in Grainger Plc v Nicholson (UKEAT/0219/09/ZT) but before the reserved judgment in that case was handed down on 3 November 2009. It therefore seemed appropriate to me to direct an expedited Full Hearing after Judgment in Grainger but in advance of the Employment Tribunal Full Hearing listed for 23-24 November. The matter now returns to me for full argument today.
17. In Grainger the Claimant, Mr Nicholson asserted that his dismissal by Grainger, in addition to it being unfair and by reason of redundancy, also constituted discrimination contrary to the 2003 Regulations in that he was dismissed due to his philosophical belief about climate change and the environment. The issue before the Employment Judge sitting at London (Central) was whether that belief was capable of being a relevant belief for the purposes of the 2003 Regulations. He held that it was. Burton J dismissed the employer's appeal against that finding with the addition of the word 'asserted' before 'belief' where it appears in the Employment Judge's formulation. A point to which I shall return later.
18. The appeal in Grainger was argued by leading counsel in the field on both sides. That case was concerned only with what is a philosophical as opposed to religious belief. Burton J considered and adopted Elias P's formulation at para. 41 of McClintock as to the relevant test for a belief within the meaning of the 2003 Regulations based on Campbell and Cosans and further considered the judgment of the former President in Eweida v BA plc [2009] ICR 303, the case of the stewardess who wished to wear a crucifix at work based on her religious belief.
19. At paragraph 24 Burton J summarised in his judgment the limitations on the meaning of 'philosophical belief' in this way:

"(i) The belief must be genuinely held.

(ii) It must be a belief and not, as in McClintock, 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."

The Appeal

20. In advancing this appeal Mr Mark Hill QC, who did not appear below, puts at the forefront of his submissions the proposition that there was insufficient evidence led by the Claimant to make good, as he must, the contention that his beliefs fell within the protection of the 2003 Regulations.
21. I cannot accept that submission. Mr Hill does not seek to challenge the Employment Judge's findings of fact at para. 3 of the Reasons set out earlier on the basis that there was no evidence to support them. The evidence came from the Claimant. None was called by the Respondent.
22. What those findings show is that the Claimant is an adherent of the Spiritualist Church, founded in 1853. He is not alone; the number of worshippers of that faith in the 2001 Census was 32,404 people, making it the 8th largest faith group in Britain.
23. There is no suggestion that the Claimant does not genuinely believe in the tenets of the faith. As to its philosophy, it includes a belief in life after death and the capacity to communicate with spirits 'on the other side'. Is that capable of amounting to a belief which is worthy of respect in a democratic society and have the necessary cogency, seriousness cohesion and importance to satisfy the McClintock test adopted in Grainger? Employment Judge Russell held that it did. Mr Hill has wholly failed to persuade me that such a conclusion is legally perverse in the Yeboah v Crofton sense.
24. Mr Hill further complains that the Judge's reasoning was inadequate. I disagree; it was 'Meek-compliant.' The facts were found on the evidence before the Employment Tribunal; the law was correctly stated; the parties know from the reasons why they won or lost.
25. Finally Mr Hill questions whether this was a suitable case for the hearing of a preliminary issue. He submits that the proper course is to allow this appeal and remit the preliminary question for determination at the substantive hearing due to be held on 23 and 24 November.
26. There is a wealth of authority in this jurisdiction here and in the Court of Appeal cautioning against employment tribunals selecting for preliminary hearing issues which may result in proceedings being extended rather than shortened. However, this PHR issue was capable of determining the whole claim had the Claimant not succeeded. It is capable of being dealt with as a discrete point. This course was taken in Grainger, presumably without exception and no objection was taken on behalf of the Respondent in this case, either before or at the PHR before Employment Judge Russell.
27. In these circumstances no error of law in treating this question as a Preliminary issue is made out in my judgment. Had I discerned an error of law in the Employment Judge's approach, and I do not, I might well have remitted the case for hearing on all issues, including the application of the Regulations to the substantive hearing. But that is a question of disposal, not primary error.
28. It follows that I shall dismiss this appeal, subject to one small amendment to the Employment Judge's order. The insertion of the word "asserted" before the word "beliefs" in paragraph (a) of the Judgment. I do so purely in the interests of comity with the decision in Grainger; see per Burton J, paras. 7 and 32.
29. On that basis the full Employment Tribunal hearing will proceed on 23 and 24 November.