Following the recent horrific knife attack in Southport which tragically killed three little girls and injured many more, numerous anti-immigration and racist riots have taken place. These riots have primarily targeted towards minority communities, Mosques and hotels for asylum seekers, and has led to the police making over 500 arrests.
In light of this, there has been speculation over what an employer should do if one of their employees has engaged in violent or racist riots. This article explores whether an employee’s beliefs will qualify as a protected characteristic if they are racist or discriminatory, and how an employer should navigate the current riots.
This protected characteristic is a topic about we’ve written before.
Philosophical belief as a protected characteristic
Under s10 of the Equality Act 2010, an employee’s religious or philosophical belief, is considered to be a protected characteristic; this means that if an employer treats an employee less favourably due to their religion or belief, then this will amount to discrimination.
For a ‘philosophical belief’ to be a protected characteristic, the criteria set out in the Equality Act 2010 Code of Practice, and discussed in the case of Grainger plc v Nicholson, must be satisfied. The belief must be:
- Genuinely held;
- A belief and not an opinion of viewpoint based on the present state of information available;
- About a weighty and substantial aspect of human life and behaviour;
- Of a certain level of cogency, seriousness, cohesion and importance; and
- Worthy of respect in a democratic society, compatible with human dignity, and not conflict with the fundamental rights of others.
Considering this; is English Nationalism a protected characteristic according to the 2010 Equality Act?
Caselaw
This question was put before an employment tribunal in Mr A Cave v The Open University in 2023.
The Claimant, Mr Cave, was dismissed by his employer linked many online racist posts back to him; when they asked about it, Mr Cave admitted that they were his, and described himself as an ‘English nationalist’. At a tribunal he argued that the employer had directly discriminated against him due to a philosophical belief.
Judge Manley applied each section of the Grainger test and found that the first four limbs had indeed been satisfied; the Claimant’s issue however, lay with the final limb.
Judge Manley ruled that the Claimant’s belief of English nationalism was not worthy of respect in a democratic society for several reasons; for example, the “ethno-centric”, racist and antisemitic views shared by the Claimant clearly conflicted with the fundamental rights of others, as they were discriminatory.
How employers should navigate the riots
An employer should bear in mind that some employees may feel unsafe or vulnerable following the violent riots which have plagued the country; these employees may be grateful for additional support.
For example, if an employee has said that they feel unsafe when commuting to and from work, it is good HR practice (but not a legal requirement) for an employer to consider altering their working hours or to permit working from home.
The Chartered Institute of Personnel and Development (CIPD) has published some guidance as to how an employer should manage an employee who is involved in the riots. The CIPD importantly notes that an employer should remain level-headed and gather as much information as possible whilst handling the situation, as a knee-jerk reaction is likely to result in several issues.
Conclusion:
Overall, the case highlights that English nationalism does not qualify as a philosophical belief under the Equality Act; employers should take care when navigating the violent riots that have swept the country, whether they are handling vulnerable employees, or employees who have been participating in the riots.