Employment Law - Can Employers Be Stopped From Discriminating Against Employees Upon The Basis Of Lifestyle Or Philosophical Beliefs As Opposed To Religious Or Political Beliefs?

The English Decision

The English Employment Appeals Tribunal (His Honour Justice Michael Burton) has ruled in October 2009 in Nicholson v. Grainger Pty Ltd that an employee’s views on the environment were entitled to the same protection as religious convictions and has ordered the Employment Tribunal to hear Mr. Nicholson’s claim that he was discriminated against in his employment by being constructively dismissed because of his beliefs on climate change.

Tim Nicholson was previously the head of sustainability for Grainger Pty Ltd, the U.K.’s largest listed residential property company. Mr. Nicholson, 42, alleged that whilst Grainger Pty Ltd had good written policies on the environment, the firm had refused to abide them. Nicholson alleged that when he tried to encourage the company to become more environmentally responsible, he was obstructed by his bosses. Grainger’s chief executive, Rupert Dickinson, in particular, had shown “contempt” for Nicholson’s beliefs and had given Nicholson demeaning and junior jobs indicating the contempt with which management viewed Nicholson’s deep philosophical beliefs. 

Nicholson was made redundant in July 2008. He brought an action for discrimination in employment to the Employment Tribunal. Nicholson based his case on the 2003 Religion and Belief Regulations under which it is unlawful for employers to discriminate against employees upon the grounds of their religious or philosophical beliefs. Nicholson’s case was that he was constructively sacked because of those beliefs by virtue of his redundancy. 

In March 2009, a judge in the Employment Tribunal (Judge David Neath) gave Nicholson permission to take Grainger Pty Ltd to the Employment Tribunal. Judge Neath’s ruling was challenged by Grainer upon the grounds that “green views are not the same as religious or political beliefs for the purposes of the 2003 Regulations”. The firm maintained that environment views are political and a “lifestyle choice” which cannot be compared to religion or philosophy.

Nicholson’s counsel argued, before the Employment Appeals Tribunal, that Nicholson’s political belief was that mankind was headed towards catastrophic climate change and that, as a result, all responsible adults are under a duty to do all they can to live their lives so as to mitigate or avoid that catastrophe for future generations. In evidence, Nicholson maintained that his views amounted to moral and ethical values and that those values were similar to those promoted by the world’s major religions. Nicholson conceded, however, that climate change was not a new religion because it was based upon scientific evidence and not faith or spirituality. 

Justice Michael Burton agreed with Nicholson’s argument and held that his beliefs did fall for protection against employment discrimination within the 2003 Religion and Belief regulations. The Employment Appeals Tribunal decided that Nicholson’s views on the environment were so deeply held by him that they were entitled to the same protection as religious convictions or philosophical beliefs and ruled that the Employment Tribunal should continue to hear Nicholson’s claim that he had been constructively sacked because of his beliefs about climate change.

The Test

In deciding, Justice Burton outlined five tests to determine whether a religious or philosophical belief could come under the 2003 Employment Regulations as follows:

Under the Charter, where two interpretations of a legislative provision are possible, the interpretation that promotes the Charter’s human rights is to be preferred by any Victorian court. In other words, if the issue came before a Victorian court as to whether the sort of philosophical beliefs discussed in the Nicholson decision constituted political belief or activity or religious belief or activity within Equal Opportunity legislation, the Victorian court may be persuaded to adopted the interpretation which incorporated a wider definition in accordance with its Charter obligations.   The Supreme Court of Victoria is also empowered to make a declaration of inconsistent interpretation. Such declarations can be issued when it is not possible to interpret a legislative provision consistently with a human right.   In other words, the Supreme Court might state that the Equal Opportunity legislation could not be interpreted consistently with the Charter rights in relation to deeply held philosophical beliefs of the sort discussed by Justice Burton in Nicholson. Under the Charter, the Attorney General is then required to give a copy of the Supreme Court declaration to the Minister responsible for employment matters and anti-discrimination and must prepare a written response to be laid before each House of Parliament and published in the Government Gazette.

In other words, the responsibilities of Victorian courts under the Charter may provide a means of expanding the definitions of prohibitive discriminatory conduct within employment to include deeply held political and/or philosophical beliefs of the sort upheld in the Nicholson decision. 

Of course, another way an employee may have of achieving the same end as that desired by Mr. Nicholson in his employment with Grainger Pty Ltd is to rely upon “whistleblower” protection legislation. This Victorian legislation enables employees of Government Departments (including the public service and a vast array of statutory organizations) to publicly inform the media where the public service employer is not abiding by the law or by its own published objectives and mission statements.   In the Nicholson decision, if Nicholson had been employed not by a private enterprise company but by a statutory authority, he may have been entitled to protection from any retribution by the whistleblower protection legislation.

This is not to say, however, that there will be a widespread rush amongst Australian courts to accord beliefs in climate change the same anti-discriminatory protection as traditional religious or political activities or beliefs.

Australian anti-discriminatory legislation, for instance, allows limited discrimination where such discriminatory conduct is consistent with the requirements of employment that take into account the reasonable and genuine requirements of the job and any special services or facilities that are required to enable a person to undertake the employment.   An example might be a person employed within the offices of the Federal Minister for Climate Change (Senator Penny Wong), or the Federal Minister for the Environment (Peter Garrett) or the Prime Minister’s Office or the Victorian Premier’s Office. Such employment may well, as a specific contractual condition, limit or prohibit the employee’s entitlement to make any public pronouncements on climate change or on the environment that are inconsistent with their political employers. Such prohibitions may be absolute involving both public and private life or only associated with that person’s employment. It could be argued by the political employer that the job performed by the employee involved promoting the particular politician’s position on the environment or on climate change and that any inconsistent statement by a staff member would inevitably be confusing and might lead to embarrassment.   Whether or not such a contractual restriction would be allowable discrimination for the purposes of the Victorian Equal Opportunity Act might be an interesting question.

In conclusion, however, it is clear that employers will need to be careful to identify and respect not just mainstream political and religious beliefs or activities but also deeply held mainstream philosophical views in an employment context.   It is always wise for employers to clearly set out what is expected of employees and, if employers do have sensitivities about employees making public statements on particular issues, consideration should be given at an early stage before the employment contract is concluded about the circumstances in which those statements can be made (if at all) and reasonable limits so as to protect both the interests of the employer and of the employee.

A distinction must also be drawn between an employee who is discriminated against because of his/her religious or political beliefs by an employer (which is unlawful) and an employee whose religious or political beliefs prevent him/her from carrying out essential (and lawful) parts of the employment requirements. The latter is not discrimination under Australian law. An example might be an animal rights activist working in an abattoir or vivisection laboratory.

This article is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. No reader should act on the basis of any matter contained in this article without first obtaining specific professional advice.

For any further information concerning this article, please contact Michael Pickering in LAC Lawyers’ Melbourne office.