Under the Equality Act 2010, individuals are legally protected from discrimination on the basis of any religious or philosophical belief, or lack thereof. The recent case of Corby v Advisory, Conciliation and Arbitration Service ET/1805305/2022 is of interest in that it is the first time that an opposition to critical race theory (“CRT”) has been held to be a protected belief.
Background of the case
Mr Corby, who is an employee of Acas, posted comments discussing his opposition to CRT on Yammar (an internal workplace-communications platform) in 2021.
He believes that Martin Luther King’s teaching, that society should judge people based on the content of their character, rather than their race, is preferable to other approaches to racism, such as CRT, which tend to see white people as problematic and to cause separatism, segregation and ethnocentrism.
Colleagues complained to Acas about the posts, asserting that the comments promoted racist ideas and that Mr Corby had “demonstrated a deep-rooted hatred towards black and minority ethnic people”, as well as stating that they would not feel safe to be in contact with him in person. Acas dismissed the complaints, but still required Mr Corby to remove his posts on the basis that some employees had found them offensive.
Mr Corby submitted a complaint to the Employment Tribunal, arguing that he had been unlawfully discriminated against, and that his opposition to CRT was a protected belief under the Equality Act.
Tribunal’s Approach
It was for the Tribunal to decide whether Mr Corby’s views satisfied the five criteria as set out in Grainger plc v Nicholson [2010] IRLR 4 (EAT), which have since been incorporated into the EHCR’s Code of Practice on Employment:
- The belief must be genuinely held
This was not in dispute in the case and the ET had no hesitation in finding that Mr Corby’s beliefs were genuinely held, with his evidence consistent with his lived experience.
- It must be a belief and not an opinion or viewpoint based on the present state of information available
The ET sided with Mr Corby’s submission that his beliefs were grounded in a philosophical system and the comments and posts all stemmed from that system. Therefore Mr Corby had not simply grasped at a viewpoint, but held views which had a legitimate grounding. It was also noted that whilst Mr Corby had referred to “views” and “opinions” in his witness statement, this was a matter of semantics.
- It must be a belief as to a weighty and substantial aspect of human life and behaviour
Mr Corby is married to a black woman and is the father of black children. The ET further said that his beliefs are not just taken from his own experience but from his extensive reading into the subject. Additionally, the ET shed light on Mr Corby’s teen years where he lived with a black woman who remains a maternal figure in his life. These facts were beyond ‘trivial’ and evidenced the substantial aspects of Mr Corby’s life which led to his views.
- It must attain a certain level of cogency, seriousness, cohesion and importance
The Claimant, when questioned in detail about his beliefs, was able to explain them with “some clarity” to the Tribunal. The ET found his beliefs to be serious and important, as seen by the influence as to how he lives his life and by how much time and effort he spent considering and expressing such views.
- It must be worthy of respect in a democratic society, be not incompatible with human dignity
The ET stated that “The claimant’s beliefs relate, in essence, to the best way of eliminating racism in society, and are clearly worthy of respect. They cannot be described as incompatible with human dignity or conflicting with the fundamental rights of others, even if they are not universally shared and were objected to by some of the claimant’s colleagues.”
The ET judge also referred to the case of Maya Forstater, who was dismissed following gender-critical tweets, and noted that the only beliefs which are to be excluded are limited to those ‘most extreme’ views, which incite hatred or violence (such as Nazism).
Outcome of the case
The ET decided that Mr Corby’s beliefs satisfy the Grainger criteria and so are capable of being protected. Whether or not he was discriminated against will be decided at the final hearing in the case.
Key Takeaways for Employers
The decision does not create any legal precedent, but is interesting and a new development in the application of the law in this area.
Employers should be aware that as long as an individual’s views are not so extreme as to conflict with the fundamental rights of others, the views they express at work may be capable of protection under the Equality Act.