S Thomas v Surrey and Borders Partnership NHS Foundation Trust & Anor

A philosophical belief is excluded from protection under section 10 of the Equality Act 2010 only in exceptional and extreme cases. The fifth Grainger criterion gives effect to Article 17 of the Convention. It excludes beliefs which seek to destroy Convention rights, rather than beliefs which merely offend, shock or disturb.

A belief that Islam should be banned or that Muslims should be forcibly removed from the United Kingdom espouses hatred and would destroy the rights of the targeted group. It is therefore outside Convention protection and cannot be a protected philosophical belief. A tribunal may consider public statements where they are necessary evidence of the claimant’s actual belief.

The claimant’s agency assignment with an NHS trust ended after less than three months. He alleged that the true reason was his political activity and his philosophical belief in English nationalism, contrary to section 10 of the Equality Act 2010.

At a preliminary hearing, the employment tribunal found that English nationalism could in principle be protected, but that the claimant’s belief included anti-Islamic views. It found that those views failed the fifth Grainger criterion and dismissed the discrimination claim.

The claimant appealed. The central issue was whether his belief, including views supporting a ban on Islam and coercive removal of Muslims, was capable of protection under section 10.

1. Appeal dismissed. The employment tribunal was entitled to hold that the claimant’s belief was not a protected philosophical belief under section 10 of the Equality Act 2010.

2. The five Grainger criteria remain the proper criteria. The fifth criterion is to be understood through Article 17 of the European Convention on Human Rights. As explained in Forstater, the threshold for denying protection is high: only exceptional and extreme beliefs which would fall outside Convention protection fail the criterion. Beliefs that are merely offensive, shocking or disturbing remain capable of protection, although their manifestation may be restricted under Articles 9(2) or 10(2).

3. Grainger was not inconsistent with Redfearn, and Forstater did not depart from it. Burton J’s reference in Grainger to a racist or homophobic political philosophy was obiter and must not be read as creating a lower threshold. A respondent relying on Article 17 does not invoke Convention rights against the claimant; it identifies the boundary of Convention protection.

4. The employment tribunal was entitled to examine the claimant’s social-media posts and oral evidence because his witness statement did not fully disclose his anti-Islamic beliefs. Its unchallenged findings established that his English nationalism included a belief that Islam had no place in British society, should be banned unless altered, and that Muslims should be forcibly removed from the United Kingdom.

5. Those beliefs went beyond offensive expression. They espoused and would necessarily stir up hatred of Muslims, and forcible removal on religious grounds would destroy their Convention rights. They were analogous to the Article 17 case of Norwood and to the example in Forstater of forcible deportation for the good of the nation. Although the tribunal’s reasoning contained an inconsistency about whether rights had actually been infringed, its conclusion was the only permissible one on its findings. The claimant remained free to hold the beliefs, but could not bring a discrimination complaint in respect of them.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 141.
• Employment Tribunal (London South): At a preliminary hearing, Employment Judge Hyde held that the claimant’s English nationalism, including his anti-Islamic views, was not a protected philosophical belief under section 10 of the Equality Act 2010.