The Grainger Test Challenged? Thomas v Surrey and Borders Partnership NHS Foundation Trust

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ABSTRACT This note analyses the decision of the Employment Appeal Tribunal (EAT) (Sheldon J) of Thomas v Surrey and Borders Partnership NHS Foundation Trust and Brett. The central message of the case is that English Nationalism with an anti-Islamic, anti-immigrant tinge does not deserve legal protection as a philosophical belief under s.10 Equality Act 2010. Thomas raises an interesting point of principle regarding the question of whether the fifth limb of the Grainger v Nicholson test—namely whether philosophical beliefs are worthy of respect in a democratic society, compatible with human dignity or are in conflict with the fundamental rights of others (fifth limb)—should be expanded to exclude from protection beliefs espousing intolerance or discrimination, and provides helpful clarity on how tribunals may take into account material beyond what is pleaded by the claimant in order to ascertain what the true nature of a purported philosophical belief may be. The note concludes that the former point is a move which should be resisted given the importance of rights under Articles 9 and 10 of the European Convention on Human Rights, and also critiques the reasoning of the Employment Appeal Tribunal in countenancing this possibility. It also concludes that the latter point will be of particular interest to practitioners who plead these sort of cases before the tribunals and predicts respondents to be bolder in their use of extraneous material to interrogate the nature of a claimant’s beliefs beyond what is pleaded or contained in their witness statements. The note also concludes that tribunals can also have more confidence, in light of Thomas, in relying on such material in their judgments without excessive caution that they have blurred the lines of overreliance on manifestations of beliefs as opposed to focusing on the beliefs themselves.