How the law defines protected characteristics
The Equality Act 2010 is major legislation that protects people from discrimination because of a protected characteristic. “Religion or belief” is cited in the Act as one of those protected characteristics, but without specifying which religious or philosophical beliefs fall under that category. All it provides is that “belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief”.
So, what are the criteria that the courts apply for a philosophical belief to be protected under the Equality Act? The Explanatory Notes to the Equality Act outline five:
- It must be genuinely held (1).
- It must be a belief and not an opinion or viewpoint based on the present state of information available (2).
- It must be a belief as to a weighty and substantial aspect of human life and behaviour (3).
- It must attain a certain level of cogency, seriousness, cohesion and importance (4).
- It must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others (5).
Interestingly, the Explanatory Notes also read: “Beliefs such as humanism and atheism would be beliefs for the purposes of this provision but adherence to a particular football team would not be”.
What happened in the case of McClung v Doosan Babcock Limited
There has been a spate of high-profile judgments on the topic of philosophical belief in the last few years. Case law is important because – where the law is open to interpretation – it helps courts to interpret how legislation is applied to everyday scenarios. These decisions further guide how the law is applied in the future.
In this recent case, Mr McClung was dismissed from his employment. He alleged he was dismissed because of his support for Rangers. The tribunal accepted that Mr. McClung was a devoted and avid Rangers fan, and his belief in supporting them was genuinely held (1).
But the tribunal went on to find that Mr. McClung’s support for Rangers was akin to support or active membership of political parties – which, former case law had found did not constitute a philosophical belief (2). These cases centre around the difference in support – being actively interested in and concerned for the success of, in this case, a particular sports team – and belief – an acceptance that something is true (i.e. a firmly held opinion).
The tribunal then assessed the belief (3) alongside other recent case law which have involved national independence, gender critical beliefs and ethical veganism. These beliefs have been shown to be of great importance, which influences decisions and behaviour. The tribunal found that Mr. McClung’s buying tickets, enjoying pre-match build up, excitement for matches on match days, etc., were of subjective importance – as they are to countless other football supporters – but did not have a larger consequence regarding human life and behaviour. Supporting a football club was considered a, “lifestyle choice”, and was contrasted to the Casamitjana (ethical veganism) case where veganism – whilst a lifestyle choice – is one grounded in morality, and one where the reason for being vegan tends to be largely the same.
In assessing cogency, seriousness, cohesion, and importance (4), the tribunal found that, however fanatical Mr. McClung’s support for Rangers is, it has no larger consequences for humanity – with nothing underpinning it beyond a desire for the team to do well/win and no impact on how people lived their lives.
In considering the last criterion (5), the tribunal acknowledged that Mr. McClung’s support for Rangers was worthy of respect, insofar as it is a matter for him to decide on which football team he wishes to support. But did not find that such support was comparable to ethical veganism or national independence / governance.
The tribunal, therefore, decided that support for Rangers does not amount to a philosophical belief under the Equality Act, and cannot be relied upon as a protected characteristic for the purposes of claiming discrimination under this legislation.
Post-match analysis
Many genuine football supporters will be able to empathise with Mr McClung’s position and his passion for his team, and will be surprised by this decision. While football is undoubtedly tribal, it also brings people together as part of a community and will form the central part and driving force for many supporters’ lives.
What’s interesting about this judgment though, is that it brings into debate if support for certain clubs is more than a strong wish for sporting success on the field, and if it becomes part of that person’s identity, politics and overall philosophical outlook.
The Old Firm rivalry is not just a sporting competition. Its well-known sectarian elements mean that being a Rangers or Celtic fan is not just a desire for sporting success, but amounts to a bundle of other political, religious and philosophical positions (whether desirable or not) which arguably elevates intense support for certain clubs into a protected philosophical belief. Barcelona FC’s motto is Mes Que Un Club (more than a Club), alluding to Catalan independence and its links to the Spanish Civil War. This illustrates well how some teams inspire in their supporters more than a desire to win a football competition and a lifestyle choice, but also embody other broader philosophies.
It’s also worth noting that even if the tribunal’s decision is correct in law, it does leave a potential gap in protection under the Equality Act 2010 – where workplace disadvantage can and does arise from the particular team an individual supports, particularly where there are certain political, religious, geographical and philosophical connotations for the support of certain teams.
We could envisage a scenario where support for rival football teams – such as Rangers and Celtic – regularly gives rise to employment related issues. There is certainly scope for conflict between colleagues on the back of a big football result, although there is every possibility that these issues could be linked to other protected characteristics, such as nationality, race and religious belief.
Given this decision was made at an employment tribunal, it is not binding on other tribunals and there is the potential for an appeal to the Employment Appeal Tribunal in Scotland, and this case could yet go into extra time.
If you need advice on any workplace incidents, on specific aspects of discrimination, or any other employment scenarios, please contact our Employment team.
