Green beliefs: could man-made climate change put employers in the dock?

“I believe that climate change is the most important issue of our time and nothing should stand in the way of averting this catastrophe. This philosophical belief – which is based on scientific evidence – has now been given the same protection in law as faith based religious beliefs.” So said Tim Nicholson, the former head of sustainability at Grainger Plc, who this week succeeded in defending a tribunal decision that his views are protected by the UK’s anti-discrimination legislation after claiming he was unfairly dismissed and discriminated against because of his ‘philosophical belief’ about climate change.

Following the landmark ruling, in which Mr Justice Burton decided that a belief in man-made climate change, if genuinely held, was capable of being "a philosophical belief for the purpose of the 2003 Religion and Belief Regulations", press reports on the case have speculated that the ruling could open the door for employees to sue their companies for not taking proper account of their green lifestyles.

So are we about to see a employers up and down the country fall foul of the law because their employees say they haven't provided enough recycling facilities or haven't offered them low-carbon travel?

Speaking to GreenWise, Tim Nicholson’s lawyer, Shah Qureshi, head of employment law at London law firm Bindmans LLP, said he did not expect there to be a flood of such claims.

“A person who believed that they were being treated less favourably because an employer didn’t do those things, would have to show, in effect, that their lives were affected substantially,” he said.

“It’s not enough to say ‘I’m into recycling, therefore I need recycling facilities". You’ve got to show that you have a belief that’s [based on] the same sort of moral imperatives that an orthodox religion would be.

“There are five criteria that the court came up with in that respect. [The individual] would have to show, for example, that the belief was weighty and substantial [...], that it was a cogent belief and that they lived their lives according to that belief.”

Jonathan Chamberlain, partner in the employment team at law firm Wragge and Co, agreed that the scope of the ruling would be limited. “Does it mean that employees are allowed to go off and hug trees in company time? No, it doesn’t.”

But he says this doesn’t necessarily mean that the ruling won’t have an impact on a significant number of employers. It’s an issue of perception rather than reality, he says – analagous to the situation with ‘family friendly’ regulations, where employees often believe their rights to be more extensive than they actually are.

“This decision does not allow employees to go off and hug trees whenever they want. The problem is, that some employees might think it does,” said Chamberlain.

“So employers may be faced with people proselytising in the workforce, or demanding time off to go and campaign on green issues. And they are not entitled to any of those things, but they believe they are.

“So you can see employers getting tied up with grievances and tribunal claims that are going to go nowhere.”

He says this has already happened in cases involving people with strong religious beliefs – for example evangelical Christians who have claimed religious discrimination after being sacked for distributing evangelical leaflets during work hours.

To minimise the chances of a wrongful claim being brought against them, it is important that employers have a policy statement making it clear that they respect employees’ religions and beliefs and that they will not tolerate discrimination against them, said Chamberlain.

He recommended: “When training managers on these policies, you should make it clear that [the law] doesn’t give a green light to people to do what they want because of their religion or belief – whether that be Christianity, environmentalism or being a vegetarian."

Not that employers can afford to be complacent – there is always a chance that they will come up against a valid claim of discrimination based on an individual’s climate change beliefs.

“It [the law] is horrendously complicated and uncertain at the margins. And it always the difficult cases that cause the problems,” says Chamberlain.

Indeed, following this week's ruling, Nicholson commented: “This ruling is a victory for common sense that is important not only for me, but for anyone who is suffering from discrimination due to their belief in man-made climate change."

He claims he was unfairly dismissed from his job as head of sustainability at Grainger Plc, in part because of his strong views on the environment and climate change which placed him at odds with the company’s hierarchy.

Although Grainger Plc had good written policies on the environment and corporate social responsibility, Nicholson claims it refused to abide by them. When he tried to encourage the company to become more responsible he alleges that he was obstructed by senior executives, including the company’s chief executive.

Following Mr Justice Burton’s ruling, Grainger plans to contest Nicholson's claim of unfair dismissal at tribunal.

The Daily Telegraph quoted Dave Butler, Grainger’s corporate affairs director, as saying: "This decision merely confirms that views on the importance of environmental protection are capable of amounting to a philosophical belief.

"We are looking forward to addressing the issues at tribunal level and demonstrating that there was no causal link between Mr Nicholson's beliefs and his redundancy." [summary]

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