In the recent case of McClung v Doosan Babcock Ltd and others, an employment tribunal held that supporting Glasgow Rangers Football Club (“Rangers”) did not amount to a philosophical belief within the meaning of the Equality Act 2010 (“EA 2010”) and therefore could not be relied upon as a protected characteristic for the purpose of claiming discrimination under the EA 2010.
At a preliminary hearing, an employment tribunal was asked to determine whether support for Rangers is a philosophical belief in terms of section 10 EA 2010.
Mr McClung, the claimant, had been a supporter of Rangers for 42 years (most of his life). He was a member of the club, received annual birthday cards from them and spent most of his disposable income on attending their matches as well as subscribing to Sky Sports so that he could watch any matches he did not attend. He never missed a match. Mr McClung considered supporting Rangers was a way of life and that “it was as important to him as it was for religious people to go to Church”.
What is a philosophical belief?
Section 10(2) EA 2010 states that “Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.”
Whilst the EA 2010 does not define “philosophical belief” the Explanatory Notes to the Act reproduces the guidance set out in the Employment and Human Rights Commission Code of Practice on Employment, which, amongst other things, states that:
- “A belief which is not a religious belief may be a philosophical belief. Examples of philosophical beliefs include Humanism and Atheism.
- A belief needs not include faith or worship of a God or Gods, but must affect how a person lives their life or perceives the world.
- For a philosophical belief to be protected under the Act:
- it 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; and
- it must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.”
This criteria on whether a philosophical belief was protected under the EA 2010 was replicated from an earlier case (Grainger plc v Nicholson 2010 IRLR 4) and is therefore referred to as the Grainger criteria.
What did the Employment Tribunal find?
Applying the Grainger criteria to determine whether Mr McClung’s belief in supporting Rangers was protected under the EA 2010, the Tribunal found that whilst there was no dispute his belief was genuinely held (the first criterion), the remaining criteria were not satisfied:
- It must be a belief and not an opinion or viewpoint: Explanatory Notes to the EA 2010 state that “beliefs such as humanism and atheism would be beliefs for the purpose of this provision, but adherence to a particular football team would not be”. Further, the Tribunal noted that “support” is defined as being “actively interested in and concerned for the success of” a particular sports team whereas “belief” is defined as “an acceptance that something exists or is true, especially one without proof”. Having regard to the Explanatory Notes, these definitions and to case law, the Tribunal held that support for Rangers was akin to support for a political party, which case law makes clear does not constitute a philosophical belief.
- The belief must be a belief as to a weighty and substantial aspect of human life and behaviour: The Tribunal considered support for a football club to be akin to a lifestyle choice, rather than relating to a substantial aspect of human life and behaviour. The Tribunal referred to case law which demonstrated that to satisfy this criterion, the matter has to be one of great seriousness and importance which influences decisions and behaviour (e.g. national independence, gender critical beliefs and ethical veganism). It found that whilst Rangers are supported by millions of people worldwide, the reasons for their support and the way they show their support varies.
- It must attain a certain level of cogency, seriousness, cohesion and importance: Whilst the Tribunal had no doubt that Mr McClung’s support for Rangers was a serious and important matter, it was noted that not all Rangers fans behaved in the same way as he did and that instead the only common factor linking the fans was that they wanted their team to do well/win. The Tribunal therefore concluded that “however fanatical the claimant’s support for Rangers, it lacked the required characteristics of cogency, cohesion and importance”.
- The belief must be worthy of respect in a democratic society: Whilst the Tribunal acknowledged that support for Rangers was worthy of respect in a democratic society (insofar as it is Mr McClung’s decision which football team he chooses to support), it did not believe that it invoked the same level of respect as matters such as ethical veganism or governance of a country, both of which, it noted, have been the subject of academic research and commentary.
This case reinforces the requirement for all five of the Grainger criteria to be met in order to establish whether a philosophical belief is protected by the EA 2010. It made a clear distinction between “support” for something (e.g. a football team or political party) and a “belief” in something, ultimately finding that Mr McClung’s support for Rangers, however strong, did not constitute a philosophical belief and instead was more a lifestyle choice.
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