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Tags: Discrimination, McClung v Doosan Babcock Ltd, philosophical belief discrimination
Categories: Employment Law
No, says the Tribunal in McClung v Doosan Babcock Ltd (available here).
Background: To be a protected philosophical belief under the Equality Act 2010 it needs to meet the test set out in Grainger plc v Nicholson by the EAT, which is that the belief must:
Facts: The employee, Mr McClung, is a lifelong supporter of Glasgow Rangers Football Club. He spends most of his income on attending their matches and describes his support of the club as a way of life, with his attendance at games as important to him as attending church would be to those who are religious. His support extends to caring passionately about the continued union of the UK; loyalty to the monarchy and Northern Ireland; and involvement in the Orange Order.
In January 2019 Mr McClung began work as subcontractor for Doosan Babcock. He said that whilst working there he was harassed and discriminated against by colleagues and managers for supporting Rangers. This included the termination of his contract in May 2019 by his manager who was a Celtic fan.
Mr McClung brought a discrimination claim (amongst others) in the Tribunal on the basis that his support for Rangers was a protected philosophical belief.
Tribunal decision
The Tribunal held that Mr McClung’s support for Glasgow Rangers Football Club did not amount to a philosophical belief under the Grainger test. Although Mr McClung’s support for the club was genuinely held, it did not satisfy the rest of the test:
1.Be genuinely held
Mr McClung’s belief in supporting the club was genuinely held. He was an avid supporter and the Tribunal noted ‘his interest and enjoyment in all things Rangers’.
2.A belief and not an opinion or viewpoint
The support for the club did not amount to a belief. A belief is the acceptance of something you believe to be true, whereas support is being interested in and concerned for, the success of something. The Tribunal also noted the Explanatory Notes to the Equality Act which state that support for a football club would not be a protected belief. It was instead similar to support for a political party – which has previously been rejected as protected philosophical belief by the courts.
3.Weighty and substantial aspect of human life and behaviour
Supporting a football team is not equivalent to belief in something weighty and substantial. Although Mr McClung’s avid support for the club was of great importance to him personally, this went no further than being a ‘lifestyle choice’. His support did not impact on weighty and substantial aspects of human life and behaviour.
4. Attain a certain level of cogency, seriousness, cohesion and importance
Mr McClung’s support for Rangers did not centre on a fundamental question which has wider importance for humanity as a whole (unlike, for example, a belief in ethical veganism). Whilst his unionism and loyalty to the monarchy could be classified as serious issues, they lacked cogency and cohesion. They were not prerequisites for being a Rangers fan and it is rather the desire for the team to do well which links the fans together.
5. Worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others
Although the Tribunal accepted that Mr McClung’s belief in supporting the club was worthy of respect, this did not meet the threshold. It did not, for example, invoke the same respect in a democratic society as matters such as ethical veganism or the governance of a country.
Implications: It is good news for employers that the Tribunal found that support for a football team is unlikely to amount to a philosophical belief (and so does not qualify for protection from discrimination). If it did, it may open the flood-gates to claims, as football related workplace banter is often rife and could be tricky to police.
That said, this is only a Tribunal level decision and so does not have to be followed by other courts. But the fact that support for Rangers (with its strong links with religion and politics) was not enough to meet the threshold for a protected characteristic, is a good sign that support for other football clubs would also fail to do so.
Practically though, employers should continue to encourage mutual respect between staff and if football banter tips over into bullying behaviour nip it in the bud and/or take disciplinary action. Particularly as there is still a legal risk that support for a football team could be linked to other protected characteristics, such as nationality or race.
5.0/5