Opposition to critical race theory was a protected belief

Background

In Corby v Advisory, Conciliation and Arbitration Service, the claimant is a conciliator at ACAS. He describes his race as white, and the race of his wife and children as black.

The claimant describes his philosophical beliefs on the issue of race as being in opposition to critical theory in general. He believes in the importance of character over race and in particular that:

• the 'woke' approach to racism is misconceived and that seeing white people as a problem can result in separatism, segregation and ethnocentrism
• the approach of Martin Luther King which he says desires a society where people are judged by the content of their character rather than the colour of their skin. In the claimant's view this approach emphasises what people of all races have in common, namely their humanity and their capacity to support a shared national culture

The claimant has brought a claim against ACAS, of discrimination on the grounds of religion and belief. The claim is part-heard, the Tribunal having considered as a preliminary issue the question of whether the claimant's beliefs were protected under the Equality Act 2010. This decision decides that issue only.

The protection of philosophical beliefs

In order for a philosophical belief to be protected in law, it must meet the following five criteria (the Grainger criteria):

• The belief must be genuinely held.
• It must be a belief and not an opinion or viewpoint based on the present state of information available.
• It must be a belief as to a weighty and substantial aspect of human life and behaviour.
• It must attain a certain level of cogency, seriousness, cohesion and importance.
• It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

ACAS argued that the claimant's beliefs do not attain the necessary level of cogency and cohesiveness, so that they should not be protected in law.

Decision

The Tribunal found that the claimant's beliefs satisfied all five Grainger criteria. In respect of the cogency and cohesiveness of the claimant's beliefs, the Tribunal found that there was no inconsistency in the claimant's views as expressed to the Tribunal during his evidence, and that his beliefs were logical and structured, being based on considerable thought and research as well as his lived experience. His beliefs were also coherent. The claimant was able to express them clearly so that they were capable of being understood.

The Tribunal also commented on the fifth Grainger criteria, namely whether the claimant's beliefs were worthy of respect in a democratic society. The Tribunal noted the EAT's comments in the Forstater case, in which it was made clear that only the most extreme of views would not meet this criteria. The Tribunal emphasised in its decision that its role is not to form any view on the merits or otherwise of the claimant's beliefs.

Learning points

This is a first instance decision, so is not binding on other Tribunals. It is nevertheless a useful reminder of the Grainger criteria and a demonstration of the need for employers to respect and balance potentially competing views or beliefs within a staff body.

For more information on the protection of beliefs in the context of employment law, please contact Ellen Netto in our Employment team on 0117 314 5377, or complete the form below.