I posted a piece last month on the case brought by Tim Nicholson following his dismissal by Grainger plc. He is claiming unlawful discrimination on the grounds of his philosophical belief about climate change and the lifestyle needed to avoid environmental catastrophe. The Employment Appeal Tribunal has now ruled in his favour on the question of whether his belief is within the protection of the 2003 Employment Equality (Religion or Belief) Regulations. It is – so he can pursue his tribunal claim against the company.

Coming just before the launch of National Ethical Investment Week (a campaign to spread the message of green investments) the decision has important consequences for employers and pension scheme trustees (see my last post). The big question is how far does the protection go?

At one extreme, the judge said that a belief in the supremacy of the fictional Jedi Knights would not qualify. Nor would beliefs that were inconsistent with ‘basic standards of human dignity’ and not ‘worthy of respect in a democratic society’ so racist or homophobic political philosophies would not be protected. Mere opinions or viewpoints are not covered either.

So far, so good but there are two areas where the judgment widens the protection -

First, it allows a belief that isn’t part of an established system of beliefs shared by others – it can be a one-off belief, in other words, one which doesn’t govern the whole of a person’s life. The condition is that it must be a belief ‘as to a weighty and substantial aspect of human life and behaviour’. So pacificism and vegetarianism are protected. But, as in Nicholson’s case, it doesn’t need to be an ‘-ism’.

Second, political philosophies may count. Mere support of a political party isn’t enough but a belief in a political doctrine – from communism to free-market capitalism – potentially qualifies for protection. The link to political groupings goes further than Nicholson’s personal – and apparently non-party political – climate change beliefs.

We are talking to clients about the impact on investment choices for money purchase schemes. Ethical investment choices are likely to be member driven and not just a response to legal risk. According to a YouGov survey only 8% of those questioned invest ‘ethically’ but reports are that one in three people would consider it in the next 5 years – so the case definitely continues…

Jonathan Goodwin is a consultant at Allen & Overy LLP.

Comments published on Pensions Talk do not necessarily reflect the views of Allen & Overy.
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