EAT overturns finding that criticism of systemic racism was a manifestation of protected belief

Background

In the case of London Ambulance Service NHS Trust v Garrett, the claimant, a paramedic, participated in a workplace discussion following the murder of George Floyd and wider debate about racism. During the conversation, he expressed the view that systemic racism did not exist and made a number of comments which colleagues found offensive.

Following complaints, the claimant was investigated and ultimately issued with a final written warning. He was also required to undertake unconscious bias training, attend a black allyship workshop and complete a written reflective exercise on acceptable workplace language and systemic racism. He brought claims of direct race discrimination and direct belief discrimination.

Tribunal decision

The Employment Tribunal found that the claimant held a protected philosophical belief that all people should be treated equally regardless of race or culture.

The majority concluded that his rejection of systemic racism was a manifestation of that protected belief. It held that aspects of the disciplinary process and sanction amounted to direct belief discrimination, and that one aspect also amounted to direct race discrimination.

EAT decision

The EAT allowed the employer's appeal.

It held that the Tribunal had wrongly concluded that rejecting the concept of systemic racism was a manifestation of the claimant's protected belief. A belief that all people should be treated equally is a normative belief about how people ought to be treated. By contrast, a view about whether systemic racism exists is a descriptive belief about the state of society. A person could believe in equal treatment for all while still believing that systemic racism exists. The two beliefs are distinct and not necessarily connected.

The EAT therefore concluded that there was no sufficiently close connection between the two beliefs. Having reached that conclusion, the foundation of the Tribunal's belief discrimination findings fell away.

The EAT also overturned the race discrimination finding, concluding that there was no proper factual basis for inferring that the treatment complained of was because the claimant was white British. The disciplinary measures were taken because of the claimant's conduct and language, which colleagues found offensive, rather than because of his race of belief.

All of the discrimination claims were dismissed.

Learning points

The decision illustrates the importance of identifying precisely what the protected belief is said to be. Not every opinion or viewpoint connected to a protected belief will amount to a manifestation of that belief for the purposes of discrimination law.

The case also demonstrates that employers remain entitled to address conduct or language that they reasonably consider inappropriate or offensive in the workplace. The key question will often be whether action is being taken because of the employee's protected belief itself, or because of the way in which that belief has been expressed.

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For more information please contact Lucy Cinnamond in our Employment team.