Is an opposition to ‘woke’ politics a protected philosophical belief?

Mr Corby is employed by Acas as an individual conciliator. He brought a claim against his employer that he had been discriminated against on grounds of his philosophical beliefs. The tribunal had to determine as a preliminary issue whether his beliefs about critical race theory (CRT) and feminism qualified for protection. They found that his beliefs about CRT were protected.

The tribunal’s decision on the wider issue of whether he was subjected to discrimination has not yet been issued and there is little information available about the nature of the discrimination alleged. Even without that information, however, there are lessons here for employers about the range of beliefs that qualify for protection and how they must tread carefully not to discriminate.

What were the claimant’s beliefs?

The claimant told the tribunal his claim was about his overall opposition to identity politics which pit groups against one another based upon immutable characteristic such as race and gender. Specifically, he said that he believed:

• That the ‘woke’ or CRT approach to racism is misconceived because its belief in structural racism is divisive, seeing white people as a problem that can result in separatism, segregation and ethnocentrism.
• That a better approach to issues of race was that of Martin Luther King who desired a society where people are judged by their character, not their skin colour.
• That it was unhelpful to view social problems through feminist eyes, such as the view that high male suicide rates are unimportant.

What is the legal test to determine if they are protected beliefs?

To qualify for protection, Mr Corby’s beliefs had to meet criteria set out in earlier caselaw (known as the Grainger criteria after that case). They must:

• Be genuinely held;
• Be beliefs, not just provisional views or opinions on the present state of information available;
• Concern a weighty and substantial aspect of human life and behaviour;
• Attain a certain level of cogency, seriousness, cohesion and importance; and
• Be worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others.

Did Mr Corby’s beliefs qualify for protection?

The tribunal found that all the criteria were met in respect of his beliefs about race but not his beliefs about feminism.

In particular, he could explain his beliefs about race clearly and he had thought carefully about them. Questions about race were important in his life, as he was married to a black woman and the father of black children, in addition to other life experiences such as playing music regularly with black musicians. He had read numerous black writers, thinkers and philosophers on race. He was strongly opposed to ‘ethnocentrism’, which he described as the view that any person has an overarching allegiance or kinship to an ethnic group. And also to ‘ethnonationalism’ – the view that the ethnic group one belongs to is superior to other ethnic groups.

In contrast, Mr Corby’s views on feminism were held to fail the second Grainger criterion. They were genuinely held but were an opinion on one narrow issue (comments by one individual about male suicide) without an underlying philosophical belief system. He could not articulate more generally his views on sex and feminism. The tribunal did not accept that his views on feminism and his views on racial equality formed part of the same set of philosophical beliefs.

What should employers do now?

CRT has become a highly divisive issue in the United States and it’s possible that, like other cultural trends, those acrimonious debates are heading to the UK. Starting out as an academic theory, CRT is now used in many American schools’ teaching on race and equality, is the basis of diversity training in public and private institutions and is the subject matter of several best-selling books. Proponents don’t hold a uniform set of views. Broadly speaking, its premise is that racism is systemic or institutional more than a result of individual acts of bias or discrimination, and that this system benefits white people as a class (‘white privilege’). As this case shows, the theory can attract strong agreement and disagreement.

Employers must keep in mind that both those who believe in CRT and those who disagree may have protected philosophical beliefs. As our discussion of last year’s case of Forstater v CGD Europe and others shows, many beliefs are likely to amount to protected philosophical beliefs, even ones that others find offensive. Only views that are so extreme they are equivalent to Nazism or totalitarianism lose protection because they are not worthy of respect in a democratic society. And although in this case the claimant’s beliefs about feminism were not sufficiently clearly articulated to acquire protection, they might well acquire protection in a different case if more coherent and thought out.

You should not discipline or dismiss employees merely for holding legitimate views, even if their colleagues object to them. The Forstater case made it clear that employees with protected beliefs also have a limited right to express them unless that expression infringes the rights and freedoms of others, such as by harassing another employee.

Simply articulating views another employee finds offensive, does not amount to harassment but drawing the line between a legitimate expression of (potentially unpalatable) views and harassment is not always easy for employers. You should keep in mind that the test for harassment is whether conduct has the purpose or effect of violating someone else’s dignity or creating an intimidating or otherwise unacceptable environment for them. But when judging whether something has that ‘effect’ both the perceptions of the complainant and other circumstances of the case (including reasonableness) are taken into account.

You should ensure that, as part of their staff diversity and inclusion training, all employees and contractors understand their duty not to discriminate on grounds of someone’s protected religious or philosophical beliefs as well as their duty not to discriminate on grounds of other protected characteristics, such as race. Our dedicated client training team can assist with this across all levels of your organisation. This includes guiding managers through the tricky issues that can arise when staff beliefs conflict in the workplace. To find out how our team can help you, please contact Lucy Hendley, Head of Client Training.

Mr S Corby v Advisory, Conciliation and Arbitration Service (ACAS) – judgment available here