Streatfeild v London Philharmonic Orchestra Ltd ET/2390772/2011
Date added: 20 August 2012
religion or belief discrimination | philosophical belief | humanism | political protest
An employment judge has struck out as having "no reasonable prospect of success" the claim of direct religion or belief discrimination brought by a violinist whose name was on a letter published in the Independent newspaper protesting against an invitation to the Israel Philharmonic Orchestra to perform at the 2011 Proms.
Employers that are unaware of an employee's philosophical belief can rest assured that an employee cannot use a hidden belief "after the fact" to claim direct discrimination.
Employers should nevertheless make managers aware of the wide range of beliefs that can constitute a "philosophical belief" under the Equality Act 2010. These include humanism and atheism.
An employee's public use of his or her employer's name in a way that it feels causes damage to its reputation may be legitimate grounds for disciplinary action.
Along with three colleagues, Ms Streatfeild, a first violinist with the LPO, put her name on a letter sent to the Independent criticising the invitation to the Israel Philharmonic Orchestra to perform at the 2011 Proms. On the letter, Ms Streatfeild's name was followed by the identifier "LPO".
The issue received substantial media coverage. After a disciplinary process, the LPO board decided to suspend Ms Streatfeild on full pay for six months on the basis that she had caused serious damage to the LPO's reputation. Ms Streatfeild brought claims of direct discrimination, victimisation and harassment on the ground of her philosophical belief in "humanism".
The employment tribunal first had to consider whether or not Ms Streatfeild's belief in "humanism" could amount to a philosophical belief under s.10(2) of the Equality Act 2010. The tribunal had no hesitation in concluding that humanism is a philosophical belief for the purposes of the Equality Act 2010. The tribunal noted that the Oxford English Dictionary defines humanism as "a rationalist outlook or system of thought attaching primary importance to human rather than divine or supernatural matters".
The tribunal noted that, while not binding, the explanatory notes to the Equality Act 2010 (PDF format, 564K) (on the UK legislation website) and the Equality Act 2010 employment statutory code of practice (PDF format, 1.09MB) (on the EHRC website) both give "humanism" as an example of a philosophical belief. The tribunal was also presented with a number of other first-instance cases on philosophical beliefs, which illustrated to it that a case-by-case approach should be taken.
The employment tribunal applied the principles set out in Grainger plc v Nicholson  IRLR 4 EAT. In that case, the Employment Appeal Tribunal said that, for a philosophical belief to come within discrimination legislation, it must:
- be genuinely held;
- be a belief and not an opinion or viewpoint based on the present state of information available;
- be a belief as to a weighty and substantial aspect of human life and behaviour;
- attain a certain level of cogency, seriousness, cohesion and importance; and
- be worthy of respect in a democratic society and not incompatible with human dignity and/or conflict with the fundamental rights of others.
The employment tribunal concluded that humanism meets all of these criteria.
The second issue for the tribunal was to decide whether or not Ms Streatfeild does have a genuine belief in humanism. The tribunal looked at the evidence of her "long-held" belief in humanism and concluded that her education and choice of partner, and how she chose to educate her children all suggested a genuine and strongly held belief. It did not matter to the tribunal that the employer could point to instances in which Ms Streatfeild's actions appeared to be contrary to her beliefs, such as her agreeing to go on tours to China and previously playing with the Israel Philharmonic Orchestra. It said that many people have to make compromises over their beliefs at some point in their lives and "in reality most people cannot fight all the battles life presents".
However, Ms Streatfeild's direct discrimination claim fell down on the third key issue that the tribunal considered: whether or not the employer had knowledge of her beliefs. The only reference during the disciplinary process that the tribunal could identify to Ms Streatfeild's beliefs was this statement in the disciplinary hearing: "My motivation was entirely humanitarian and not at all to damage the company. I now feel that I am being punished for my beliefs." Ms Streatfeild's notes of the hearing also mentioned "the Israeli Government and their persecution of Palestinians".
The employment tribunal concluded that, other than a reference to a humanitarian motivation, there was nothing in the disciplinary process to suggest to the board of directors that Ms Streatfeild has strongly held humanist views. The employer did not know, and could not reasonably be expected to know, of Ms Streatfeild's beliefs. This lack of knowledge meant that Ms Streatfeild's claim of direct religion or belief discrimination was bound to fail and the tribunal struck it out as having "no reasonable prospect of success".
In relation to the victimisation complaint, the employment tribunal accepted that Ms Streatfeild would have great difficulty in showing that her treatment was the result of her having made a protected act, which was the complaint about her being punished for her beliefs. The employer's argument that Ms Streatfeild's treatment was because she had publicly criticised an event involving her employer in a national newspaper was a strong one.
Similarly, the employment tribunal concluded that, in relation to the harassment claim, the surrounding circumstances strongly militated against the suggestion that the employer engaged in unwanted conduct for a reason "relating to" Ms Streatfeild's philosophical belief.
The tribunal made a deposit order of £250 for Ms Streatfeild to be allowed to continue her victimisation and harassment claims on the basis that they had "little reasonable prospect of success".
- Lisk v Shield Guardian Co Ltd ET/3300873/11 In a pre-hearing review, an employment judge held that an ex-serviceman's stated belief that "we should pay our respects to those who have given their lives for us by wearing a poppy from All Souls' Day on 2 November to Remembrance Sunday" is not a philosophical belief under the Equality Act 2010.
- Farrell v South Yorkshire Police Authority ET/2803805/10 This unusual case concerned whether or not an employee’s beliefs that the terrorist attacks of 9/11 and 7/7 were carried out by the US and UK Governments, and were part of a "gigantic" and "evil" conspiracy, are capable of being protected as "philosophical beliefs" under discrimination law.
- Maistry v BBC ET/1313142/10 In this case, the employment tribunal held that a former BBC employee's belief that "public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion" is a philosophical belief for the purposes of discrimination legislation.