I am involved in an employment case where the Claimant is claiming that she has been the subject of direct discrimination due to her philosophical belief, namely nationalism, contrary to the Equality Act 2010.     

The Respondent has reserved it position until my client’s witness evidence has been served, but they have indicated that they are likely to concede that nationalism is a belief capable of being protected under the Equality Act 2010.

The requirements for a belief to be protected are:

(i) The belief must be genuinely held.

(ii) It must be a belief and not, as in McClintock, an opinion or viewpoint based on the present state of information available.

(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.

(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.

(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others[1]

The Respondent is adopting a sensible approach in my view.  It would be very difficult to argue that (ii) – (iv) do not apply to nationalism.  If an employer were to argue that (v) did not apply, then this would make it difficult for them to maintain that they would not have discriminated against their employee due to the employee’s nationalism; whilst it would not be inherently contradictory for the employer to suggest that nationalism is not worthy of respect in a democratic society and also that such belief did not affect how the employee was treated, it will be difficult to argue this in practice, as the employer would be condemning the employee’s belief on moral grounds.

In my client’s Statement of Case, nationalism has been defined as follows:

“The Claimant is a nationalist, which is a philosophical belief/protected characteristic as per section 10(2) of the Equality Act 2010 (“EA”).  Nationalism is a political philosophy premised on the concept of a nation being not merely a land mass or civic structure, but a population that is bound by a shared culture, heritage, language (in the state of the United Kingdom this would include the established languages within the separate nations), history and sense of posterity; such nation should become a nation state with sovereignty over its territory and internal affairs.  According to the nationalist, preserving the nation and the nation state as defined above, is a moral imperative.  It is integral to such belief that the interests of citizens of the relevant nation state are prioritised by such state, over the interests of the world at large.  It is also integral to such belief that the nation state does not belong to any supra-national structure that would in any way undermine the nation state’s sovereignty.”

Nothing in this article should be construed as legal advice, however if any readers believe they have a valid claim under the Equality Act, they may find the above definition useful.

The Equality Act will never in my view, be adequate from a policy point of view.  I have written previously about the need to protect specific beliefs that are expressed in good faith, outside of the course of a person’s employment, rather than protection being limited to political philosophies.  Nonetheless, hopefully the fear of a claim being brought under the Equality Act will make employers pause for thought before victimising nationalist employees.      

[1] Grainger Plc v Nicholson (2010) ICR 360 at para 24