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Poppy ban not discrimination

8th December, 2011

Lisk v Shield Guardian Co Ltd and others ET/3300873/11

In this interesting case, seeking to push the boundaries of the definition of what a protected belief might include, Mr Lisk, an ex-serviceman, claimed direct discrimination in the Employment Tribunal after his employer, Shield Guardian Co Ltd, refused to allow him to wear a poppy on his uniform, which he claimed was discriminatory because of his philosophical belief.  It was a belief that “we should pay our respects to those who have given their lives for us by wearing a poppy from All Souls’ Day on 2 November to Remembrance Sunday“.  At a preliminary hearing, an employment judge considered whether his purported belief amounted to a philosophical belief protected by the Equality Act 2010 (the Act).

The term “belief” under the Act means “any religious or philosophical belief.”  The EAT gave guidance in Grainger plc and others v Nicholson [2010] IRLR 4 as to what amounts a philosophical belief.  It stated that the belief must be genuinely held; be a belief, not an opinion or viewpoint based on the present state of information available; be a belief as to 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 be incompatible with human dignity and not conflict with the fundamental rights of others.

Mr Lisk argued, with reference to the test in Nicholson, that he regarded the period from 2 November to 11 November each year as a period of mourning; and equated it to the seriousness with which he, a Christian, observes Lent.  Also, as an ex-serviceman, he considered it an obligation to show respect for the sacrifice of others.  He also argued that wearing the poppy is widespread in this country (and abroad) and does not conflict with anybody else’s rights.

His claims were rejected.  It was held that his belief was not protected under the Act. The judge held that the relevant question (to determine whether wearing a poppy was protected) is whether or not there is a philosophical belief underpinning the choice to wear a poppy.  It was held the belief that one should wear a poppy to show respect seems to lack the characteristics of cogency, cohesion and importance required by the Nicholson case.  The belief that we should express support for the sacrifice of others cannot fairly be described as being a belief as to a weighty and substantial aspect of human life and behaviour. The Employment Tribunal held that this was too narrow to be characterised as a philosophical belief.

Despite belief in climate change and anti-fox hunting previously coming within the scope of the law’s protection of philosophical beliefs, it is clear from this case that even though a belief may be worthy, even admirable (and the person holding it sincere in doing so); passionately believing in something is simply not enough in itself to meet all the conditions required by law.

If you have a uniform policy or a dress code, make sure any restrictions are communicated to all staff.  Please contact Catherine Kerr in our employment team for further information.

 

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