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Freedom and Flat-Earth Theorists

BY Gerry O'Hare
Employment Law & HR

In 2017 Flat earth fundamentalists donated over $1 million to launching satellites and areal drones in attempts to prove the earth was not round. Some might consider this mad, but does such dedication stem from a philosophical belief? 

Well, SNP Councillor McEleny’s case against the MOD may give us more of an answer. Whilst employed by the MOD as an electrician, McEleny revealed ambitions to move up the SNP hierarchy. Once his campaign to become party deputy leader began, his security clearance was revoked and he was suspended pending questioning from the MOD’s National Security Vetting team.

Was he a modern day Wallace? Not quite. After he was questioned on issues such as independence, Trident and Irish politics, McEleny’s security clearance was reinstated.  Rather than shouting ‘freedom’ at the top of his lungs, he resigned and raised an employment tribunal claim for discrimination based upon his philosophical beliefs.  took the MOD to an employment tribunal claiming he was treated differently based upon his philosophical beliefs.

Under the Equality Act 2010, it is unlawful for employers to discriminate against individuals on account of their religious or philosophical beliefs. These believes have to be genuinely held and on an issue of substance, they cannot be an opinion or viewpoint.

A Preliminary Hearing was held for the tribunal to decide whether a belief in Scottish independence could be covered by the Equality Act. McEleny was successful in his case; with Judge Frances Eccles noting that his belief in Scottish Independence “has a sufficiently similar cogency to a religious belief” in order for it to “qualify as a philosophical belief.”  His success stemmed from a “fundamental belief” in national sovereignty. 

Is this a new success solely for Independent supporters? Not really. The argument was based on a previous case Grainger v Nicholson, concerning a belief about climate change and the environment which was deemed a viable philosophical belief.

It is hard to know where this leaves an employer. If beliefs regarding independence are included and so are climate change, could legal protection be extended to, for example, flat earth theorists? Arguably, it is important to remember the requirement that the belief must have a certain level of cogency, seriousness, coherency and importance and be worthy of respect in a democratic society.

What we can learn from this ruling is that, if there is another Scottish independence in the future, employers would be wise to limit any office discussions on the topic to reduce the risk of a discrimination claim being raised. 

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