English Nationalism upheld as a protected characteristic under the Equality Act
has been highly effective in fighting for its member’s interests. In its relatively short life has already taken members’ cases three times to the Court of Appeal and won on every single occasion, establishing some important points of legal principle.
Quite recently the Workers of England Union was representing a Claimant in the Employment Tribunal who claimed to have been discriminated against on the grounds of his active English nationalism. In fact in the end the Tribunal decided that he wasn’t dismissed because of his English nationalism but for another reason which it wasn’t illegal for the employer to dismiss for.
The interesting thing however about the case from an English nationalist point of view is that the National Health Service England Commissioning Board’s own lawyers accepted that English nationalism was a system of belief which was protected under the Equality Act 2010. Also the Employment Tribunal expressly made a finding that English Nationalism is a protected characteristic, although with some caveats.
The case was taken on to the Employment Appeal Tribunal, where Mrs Justice Slade, the President of the Employment Appeal Tribunal, heard the case and also confirmed that, in her view, English nationalism was a protected characteristic under the Equality Act as a “System of Philosophical Belief”. She indicated that the caveat that the Employment Tribunal had thought might take this particular claim of English nationalism outside of what was protected was arguably wrong. However, because she was upholding the Tribunal’s finding on what had actually caused the dismissal being legal, why therefore the definition of English nationalism couldn’t be relevant to the outcome of the particular case.
This of course gives strong support for bringing any case whenever there is any suspicion that the reason for the decision was the employer was opposed to English nationalism.
The type of English nationalism which the Tribunal upheld was set out in detail by one of the leading thinkers on English nationalism, Tony Linsell. This was in a witness statement which was accepted, not only as defining English nationalism by the National Health Service England’s Commissioning Board, but also by the Leeds Employment Tribunal.
What I am going to do therefore is set out the whole of Tony Linsell’s witness statement so that you can see what has now been clearly accepted by the Employment Tribunal and then by the presiding Judge of the Employment Appeal Tribunal as being wholly acceptable English nationalism whose adherence are unquestionably protected by the Equality Act 2010.
After Tony Linsell’s witness statement I shall set out the edited decision of the Leeds Employment Tribunal so that you can see what the thinking of the Tribunal was about the question of English nationalism.
The rest of the Judgment was about other matters and, in particular, why they were saying that the decision of the employer was actually on a completely different issue and is therefore irrelevant to the consideration of English nationalism as a protected characteristic under the Equality Act 2010.
Here is the witness statement of Tony Linsell:-
“I, Anthony Linsell, will say as follows:-
1. I am a semi-retired book publisher and English political and cultural campaigner. (Date of birth 17th February 1946). In 1989 I began publishing books about early English history, language and identity. In 1998 I was a founding member of the Campaign for an English Parliament. I was a founding member in 2002 of the English Democrats Party. I wrote, and in 2001 publish a book, An English Nationalism.
2. As the subject matter of this statement is English Nationalism and what it means to be anEnglish Nationalist it makes sense to define some terms as follow:-
(i) Nation
A nation is a group of people who share a communal history, language, culture, ancestry, identity and sense of belonging. A common religion often also plays a part in binding together a nation. A nation is an extended family with informal and hard to define boundaries. There is no check-list for determining membership but members have a sense of who is an insider and who an outsider. Membership of a nation is felt rather than defined.
he idea of a nation being a family is the original and what most regard as being the correct use of the word nation. Others – especially Americans – choose to use nation to mean state, which often cause unnecessary confusion. Thus we had the League of Nations and the United Nations despite the members of both being states. The European Unionand NATO also have member states – not member nations.
(ii) Nationalist
A nationalist is someone who gives political expression to their feelings of affection for and loyalty to their nation. It is a love of a nation’s way of life that inspires a wish to preserve its territory and customs, and further the welfare of its members. It is generally believed that a nation can best preserve itself and pursue its interests by having its own government. This idea of national self-determination is embedded in classic liberalism and underlies the democratic principle of government of the people, by the people, for the people. It acknowledges the fact that different nations, cultures and political traditions have different ideas about government and who should govern.
(iii) Nationalism
Nationalism is loyalty and devotion to a nation, which is an extended family. Just as individuals care for the welfare of their immediate family, so nationalists care for the welfare of their nation as a whole and its individual members; they feel an affinity with fellow members and feel a need to preserve the nation’s way of life and territory – the homeland. This instinct is natural and usually positive, and is at the heart of nationalism. Many of those who feel a sense of national bonding do not think of themselves as nationalist.
(iv) State
A state is a political entity that claims, (a) ownership of a territory; (b) the right to enact and enforce laws in that territory; (c) the right to define who is a citizen and to demand their loyalty; (d) the right to make agreements with other states.
The United Kingdom is a state. Scotland, Wales and England are countries. The Scots, Welsh and English are nations. This shows what a nonsense it is to speak of the nations and regions of the UK in the context of devolution.
Those who use nation to mean state necessarily have a distinct view on what nationalist and nationalismmean. For them a nationalist (often called a patriot) is someone who gives loyalty and devotion to their state, which they often call their country.
Those who control states tend to see nations and the loyalties they inspire as competitors. It is principally for this reason that states prefer nationalists to be seen in a negative way, e.g. nasty, brutish and war mongering, while patriots (who express loyalty and devotion to the state) are seen in a positive light as, for example, peace loving upholders of freedom and democracy. However, if we look at the voting record of Scottish and Welsh nationalists in the House of Commons we can see that the Scottish National Party and Plaid Cymru have voted against acts of war against Serbia, Iraq, Libya and Syria while those who claim to be patriots voted for wars.
Ghandi was an Indian nationalist who advocated peaceful political action. There were also Indian nationalists who advocated violence; one of them murdered Ghandi. The point being that it is wrong, and shows prejudice, to claim that nationalists as a whole are any more nasty and brutish than others.
Christians and the followers of many other religions have advocated and supported wars despite claiming to believe Thou shall not kill. Many Christians, clergy and laity, participated in World War I and condemned and persecuted those who refused to fight. Would it be fair to use this to condemn Christians as brutish warmongers? Let those without sin cast the first stone.
States have laws that set out clearly who is a citizen and how to become a citizen – they have a check-list. Citizenship is defined rather than felt. This contrasts with membership of a nation where membership is by birth or informal assimilation.
3. The English Nation
The English nation has a long recorded history and has all the other essential ingredients of a nation.
Those who wish to trace the history of any nation need to trace the recorded history of those who bear the name of that nation. The first mention of the English is by Tacitus writing in 98AD. In Germania he mentioned the Anglii, which is the Latin version of Angel (plural) Angle (singular).
4. The Angel lived in Angeln, in the south of the Jutland peninsula. The archaeological record shows that they had lived in that area for centuries before Tacitus recorded their existence.
The Old English poem Widsith tells of Offa, the 15 year old son of the king of Angeln, who, about the year 350AD, fought and defeated two warriors at once and in doing so greatly expanded his father’s kingdom. On his father’s death Offa became king of the Angel. The language they spoke was Anglisc. With shifts in the language over the next few centuries Angel became English; Angeln became England; Anglisc became English (language). The French have record the earlier forms of these words in their name for the English and England – Anglais and Angleterre. East Anglia is also a reminder of the earlier form.
5. The Venerable Bede (672-735) took the existence of the English people as a matter of fact. In his, An Ecclesiastical History of the English People, he tells of the migration to Britain of three powerful tribes, the Angels, Saxons and Jutes. This migration took place during the 5th and 6th centuries, after the Romans had formerly left Britain in 410AD.
Bede says that when the migration of the Angels was finished their old homeland stood empty. The main early area of Anglian settlement became Mercia, with its capital at Tamworth. They also settled in East Anglia and Northumbria (the land north of the Humber).
6. The migration of the Angels was probably a tribal migration. The kings of Mercia, Penda (reigned 626-655) and Offa (reigned 757-796), claimed descent from Offa of Angeln. Offa of Mercia was also known in his time as King of the English.
7. The other large groups of migrants were Saxons and Jutes. The Saxons were a confederation of closely related tribes who differed little from the Angels. Only a part of the Saxon people settled in Britain, mainly in the south of what is now England – Essex, Sussex, Middlesex, and Wessex. Those Jutes who migrated to Britain mostly settled in Kent and the Isle of Wight and the mainland to the north of Wight.
8. We have a broad picture of the migration but the number of migrants and the details of how they migrated and exactly when it took place are not known. However, the linguistic, genetic, material culture and place name evidence suggests that the information we have from Bede is broadly correct and the number of migrants was substantial. The more we learn of the migration the more apparent it becomes that the speed and extent of settlement varied for time to time and place to place. For example, it is likely that North Sea Germans migrated to Britain before and during the Roman occupation.
9. Bede appears to have believed that the closely related tribes he mentioned were merging into a common English identity. He tells from whence they came and were they settled. He had access to a vast library and a folk memory (oral tradition) so it is reasonable to believe he knew more about the matter than those who now claim they know better. It is also highly probable that Bede’s informed contemporaries shared his views; he would hardly paint a picture of events that was at odds with living folk memory. Many of the books he had access to, and most of the oral tradition, have since been lost but they informed his account of the migration. Bede was, in modern terms, an English nationalist in that he claimed the existence of an English nation and outlined its history.
10. When the Anglo-Saxon migration and conquest was complete, the land in which the English lived (Englalond) was made up of seven kingdoms. By the time of King Alfred’s birth (849-899) there were effectively four kingdoms, Northumbria, East Anglia, Mercia and Wessex. The first two fell under the domination of Danes, and Mercia was only partially independent. Wessex came under attack and in the wars that followed Alfred became king at the age of 21. At a low point in the war Mercian warriors joined Alfred’s force and together they set about driving the Danes out of England. The contribution of the Mercians was ignored by those in Wessex who wrote the official history of the time. In an age when marriages were an expression of alliances, it is no accident that Alfred’s wife Ealhswith was a Mercian and that their eldest daughter, Æthelflæd, became known as Lady of the Mercians and ruled Mercia from 911 until her death.
11. The English gave their name to land they lived in – England. Alfred the Great was an English nationalist who set out to create and defend an English nation-state (kingdom) and to unite all of the English in one English national identity. This was not fully accomplished during Alfred’s life time but he devised a grand strategy for achieving it. Alfred set about defending England by fortifying towns and creating an obligation on his subjects to defend those towns. He also devised a system of taxation and obligation that made his reforms possible.
12. A treaty between Alfred and the Danes, acknowledged Alfred as being king of all the English, wherever they lived in England. He was therefore king of the English living in that part of England controlled by the Danes (The Danelaw).
13. Bede acknowledged and believed in the existence of an English nation but Alfred the Great went very much further and gave political expression to the strands of national identity. He encouraged the clergy, nobles and administrators, to be learned and efficient. He introduced his own Law Code and contributed to a rudimentary welfare system. He stabilised the currency and reformed land and naval forces. He built on Bede’s work as a historian and was responsible for the creation of the Anglo-Saxon Chronicle, which was the story of the English nation. He translated and had translated written documents from Latin into English, both to increase the status of English and to make knowledge available to all of the English and not just the clergy and administrators. Among the translations were extracts from the Bible. By these and other means Alfred united the English and created the Kingdom of England, which became one of the most sophisticated, efficient and powerful kingdom in Western Europe.
14. English society was very advanced for its time. For example, there was a belief in the rule of law, and women had the right to own and bequeath property. They also retained their ownership of property on becoming married and divorced.
15. The life of King Alfred (849-899) shows how short life is but how so very much of importance can be achieved in that short time.
16. When the Dane Canute became King of England he appreciated the wealth and sophistication of the English state and did not destroy or plunder it but took it over and sent his army back to its homeland. It was very different when the English were defeated by the Normans in 1066 and became a subject people living in a Norman colony. This was a catastrophe for the English that had lasting effects but on the positive side it gave rise to the English radical tradition which has had a massive influence on the development of political thought and practice throughout the world. It has also been central to the development of English nationalism and a belief in freedom of the individual and of nations.
17. The Normans and their successors plundered England and heavily taxed the English. Unlike Alfred who fortified towns to protect the English from foreign invaders, the Normans built castles to protect themselves from the English. They also destroyed English cathedrals and replaced them with large Norman cathedrals that physically and psychologically dominated the largest towns and the people living in them.
18. The Normans made significant changes to English law. They deemed that the king owned all of the land in England and they changed the property law so that women lost their property rights, which they did not recover until the Married Women’s Property Act of 1882.
19. The Normans made Norman French the spoken language of government and the judicial system: Latin was the written language. An early consequence of this was that English people had no choice but to settle disputes and answer prosecution in a court dominated by Normans speaking a foreign language. Hence, the need to employ lawyers to speak on their behalf where before they had spoken for themselves. It was not until the 14th century that law courts conducted their business in English.
20. The English were made to fund Norman wars and in 1189 they were burdened with King Richard I who lived in England for a very short period and spoke hardly any English but did England and the English great damage through his egotistical and ultimately unsuccessful war play. The taxes raised to fund his exploits, and the hatred felt for Richard the Lionheart, gave rise to the tale of Robin Hood, who did not as modern tales of Robin would have us believe, have any liking of Richard or feel any loyalty to him. Richard was an enemy of the English and loathed accordingly.
21. Despite attempts by the Normans to avoid contact with the English, many of them were murdered by the English. In response a law was introduced that every unidentified body was held to be that of a Norman unless it could be proved the dead person was English. A murdered Norman resulted in a heavy fine being paid by the administrative unit (known as the hundred) where the body was found. The relevance of this is that the Normans acknowledged the existence of the English and that they were a separate nation from the Normans.
22. Because of all that happened to the English and the centuries of oppression they endured, they have developed a keen sense of what is fair and just. From the Norman occupation comes the idea of the Norman Yoke. The English Radical Tradition is about how the former can best overcome the latter.
23. In researching Englishry it was discovered that Lord Denning, former Master of the Rolls, was very pleased to have Alfred as his first name because it was the name of a great man and linked him with his Anglo-Saxon ancestry. It also became clear that his sympathies were with Cromwell and the Parliamentarians, and probably with the English Radical Tradition.
24. English nationalists and others have looked to the pre-conquest Anglo-Saxon period for inspiration about the sort of society they wish to create and live in. Those who do that often take an overly idealistic and simplistic view of power and the democratic nature of early English society but such views and beliefs played a part in creating the legend of Robin Hood and influenced the ideas expressed by those leading the English Revolt (Peasants’ Revolt 1371); the Levellers and others fighting on the side of Parliamentarians in the English Revolution (Civil War 1642-51); those framing the American Declaration of Independence and US Constitution; the founders of the trade union movement; the Whigs and classic liberals. Anglo-Saxon notions of liberty and democracy have been central to modern ideas concerning democratic government and human rights.
25. The Black Death reached England in 1348 and died out in 1349. During that time about half the population of about 6 million people died from the plague, which did not discriminate on the basis of social class. The great reduction in population had dramatic social and economic consequences. It led to a decline in serfdom (semi-slavery) and a rise in wages, which led to the English Uprising in 1381 and demands for greater freedom and equality, and basic support for the very poor.
26. There were fewer people but there was less control of them and a greater proportion of the population experienced a sense of freedom that led them to press for social reform. The much reduced population did not bring an end the Hundred Years War, which was a series of conflicts in the period 1337-1453 between those who ruled England and those who ruled France. The French aristocrats won and the ruling class in England knew they had lost any chance of reclaiming their French territories. They discarded their French names, ways and claims, and searched for a new identity. They chose to adopt an English identity. This and the increased sense of freedom among the English led to a greater status for English culture and the English language. Thus William Tyndale (1494-1536) followed the lead given by King Alfred and set about translating the Bible into English. He was the main contributor to a great achievement of English culture. Serfdom was rapidly fading away and in 1574 Queen Elizabeth freed the last remaining serfs. The Elizabethan age saw a great flowing of things English and gave opportunities for the English to use their wits and enterprise to set about building a great Empire.
27. The Whigs were said to be the party of the Anglo-Saxons and the Tories the party of the British Norman establishment. English-Americans like Thomas Jefferson were Whigs who looked to the restrictions placed on royal power by the Anglo-Saxon witan, and before that the hundred, which had its origins in the Germanic world described by Tacitus. This system was an inspiration to him when writing a US constitution that sought to restrain the power of the state and professional politicians, and ensure that sovereignty remained with the people.
28. The ideals and form of democracy advocated by the American founding fathers were from the English Radical Tradition. The connection between nation and democracy is explained well by John Stuart Mill who wrote the following.
A PORTION of mankind may be said to constitute a Nationality if they are united among themselves by common sympathies which do not exist between them and any others — which make them co-operate with each other more willingly than with other people, desire to be under the same government, and desire that it should be government by themselves or a portion of themselves exclusively. This feeling of nationality may have been generated by various causes. Sometimes it is the effect of identity of race and descent. Community of language, and community of religion, greatly contribute to it. Geographical limits are one of its causes. But the strongest of all is identity of political antecedents; the possession of a national history, and consequent community of recollections; collective pride and humiliation, pleasure and regret, connected with the same incidents in the past.
Representative Government, John Stuart Mill – published 1861
29. English nationalists want to preserve the English nation and promote its welfare. I am an English nationalist in much the same way that Ghandi was an Indian nationalist or Alex Salmond is a Scottish nationalist. Nationalism is born out of a love for a nation and a concern for its welfare. That concern leads to a demand that the British state should formally acknowledge the existence of the English as a nation and an ethnic group so that the English can enjoy the same rights, benefits and privileges accorded to other such groups living in the UK. These benefits include the right to seek a fair allocation of state funding for the English community and to have the state address discrimination against the English. There is no real difference between membership of a nation and membership of an ethnic group but it is common for ethnicity to be defined in a way that has the political and ideological purpose of denying the English an official ethnic identity and thereby excludes them from recording their ethnicity on monitoring forms and the national census. In other words, it is a way of making the English officially invisible. This places them at a disadvantage in detecting and proving discrimination. It also makes it easier for others to discriminate against the English and avoid detection. England is probably the only country in the world that does not include its largest ethnic group on ethnic monitoring and census forms. ‘White British’ is not an ethnicity – ‘White’ relates to race and ‘British’ relates to citizenship. Seeking to remedy this and other forms of discrimination by campaigning for English civil and political rights is an honourable activity and part of an ancient tradition.
30. Negative images of the English are so often painted, and so little is done to reprimand the culprits that many feel free to discriminate against the English in a way they would not think of doing against any other group. There are in England many supporters of the Indian BJP political party. It is a nationalist party and many of its supporters are presumably nationalists and Indians. It is rightly unthinkable that any of them could be dismissed from their employment because of their support for, or membership of, a nationalist party.
31. I and many others have long felt considerable anguish about the lack of recognition of the English community and a lack of concern for its interest and welfare. This matter is of great importance to me and many others and it prevents us from leading a less worrisome normal life.”
So there you can see Tony Linsell’s vision of English nationalism which has been fully accepted as protected under the Equality Act 2010.
Below is now the relevant part of the Judgment in the case which explains the Tilbrook’s reasoning.
I would just say I don’t think the Employment Tribunal was legally correct in its caveat. In particular the case that they rely upon, Granger, was decided before the Equality Act 2010 came into force on the basis of the previous law, which didn’t have a provision for protecting a “System of Philosophical Belief”.
Also the leading case on the application of European Convention on Human Rights which is relevant to this case was the case of Redfearn. Mr Redfearn was a British National Party member who was said to believe in the “White Race Nation” and was assumed to be a neo-Nazi. Even so the European Court of Human Rights made it clear that his rights were required by the Convention to be protected. It follows that anyone whose views fall short of being a neo-Nazi should definitely be protected now.
Yet another point of error is that the Tribunal has made its decision as if the European Convention on Human Rights applies to individuals. In fact the Convention has application only to what the State does and even then only to what it does to those that are in its jurisdiction. So, for instance, it is not against the European Convention on Human Rights for a signatory State’s employees to shoot foreigners who are not in the State’s jurisdiction, otherwise obviously the European Convention on Human Rights would have in effect outlawed any signatory State from going to war!
Anyway here is the relevant part of the Judgment:-
“Case No. 1800958/2016
EMPLOYMENT TRIBUNALS
Claimant:
Mr S T Uncles
Respondents:
1. National Health Service Commissioning Board 2. David J Fish 3. Kovin Bates 4. Paul Smith
HELD AT:
Leeds
ON:
4 and 5 October 2017
BEFORE:
Employment Judge Franey Mr G Harker Mr Simms
REASONS
Introduction
1. By a claim form presented on 10 June 2016 the claimant brought complaints against six different respondents arising out of the termination of his agency work with the first respondent with effect from 6 May 2016. They were complaints of unfair dismissal, of breach of contract in relation to notice, of unlawful deductions from pay and complaints of discrimination because of or harassment related to race, sex and philosophical belief. The claimant is a man who describes himself as English, and the philosophical belief on which he relied was a belief in English nationalism.
Case No. 1800958/2016
There were two issues for the Tribunal to determine,
6. The first was whether the claimant’s belief in English nationalism was a philosophical belief protected by section 10 Equality Act 2010.
7. The second was whether in deciding on 6 May 2016 to terminate his placement the respondents treated the claimant less favourably because of sex, because of race and/or because of his philosophical belief in English nationalism than they treated or would have treated a comparator in circumstances not materially different to those of the claimant.
Relevant Legal Framework
Jurisdiction
12. Discrimination against a contract worker is prohibited by section 41 of the Equality Act 2010
Protected Characteristics
13. Section 9 defines the protected characteristic of “race” as including nationality and ethnic or national origins. Section 11 establishes the protected characteristic of sex
14 Section 10 defines the protected characteristic of a religious or philosophical belief. The material parts read as follows:
(1)….
(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.
(3) In relation to the protected characteristic of religion or belief
(a)
a reference to a person who has a particular protected characteristic is a reference to a person of a particular religion or belief;
a reference to persons who share a protected characteristic is a reference to persons who are of the same religion or belief.”
15. The leading authority on the proper interpretation of what will amount to a philosophical belief remains Grainger PLC and others v Nicholson [2010] ICR 360, a decision of Burton J in the Employment Appeal Tribunal (“EAT”). The claimant asserted that a belief in man-made climate change was a protected characteristic. The EAT agreed that such a belief was capable of being protected under what is now section 10. After considering the European Convention on Human Rights (“ECHR”) and authorities on the scope of Article 9 (see below), the EAT identified in paragraph 24 five limitations or criteria which must be satisfied if a belief is to be protected:
“0)
The belief must be genuinely held.
3
It must be a belief and not … an opinion or viewpoint based on the present state of information available.
It must be a belief as to a weighty and substantial aspect of human life and behaviour.
3
It must attain a certain level of cogency, seriousness, cohesion and importance.
3
It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others….”
16. These considerations are replicated in paragraph 2.59 of the Equality and Human Rights Commission Code of Practice on Employment (2011).
Case No. 1800958/2016
Direct Discrimination
17. The definition of direct discrimination appears in section 13 and so far as material reads as follows:
(1)
A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.
18. The concept of treating someone “less favourably” inherently requires some form of comparison, actual or hypothetical, and section 23(1) provides that:
“On a comparison of cases for the purposes of section 13 … there must be no material differences between the circumstances relating to each case”.
19. It is well established that where the treatment of which the claimant complains is not overtly because of a protected characteristic, the key question is the reason why” the decision of action of the respondent was taken. This involves consideration of the mental processes of the individual(s) responsible for the decision: see the decision of the EAT in Amnesty International v Ahmed [2009] IRLR 884 at paragraphs 31-37 and the authorities there discussed. If the protected characteristic had any material influence on the decision – consciously or subconsciously – there will have been a contravention of section 13
Burden of Proof
20.
The burden of proof provision appears in section 136 and provides as follows:
“(2)
If there are facts from which the Court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred.
But sub-section (2) does not apply if A shows that A did not contravene the provision”.
21. In Hewage v Grampian Health Board [2012] ICR 1054 the Supreme Court approved guidance given by the Court of Appeal in Igen Limited v Wong [2005] ICR 931, as refined in Madarassy v Nomura International PLC [2007] ICR 867 where Mummery LJ held that could conclude”, in the context of the burden of proof provisions, meant that a reasonable Tribunal could properly conclude from all the evidence before it, including the evidence adduced by the complainant in support of the allegations, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. Importantly, at paragraph 56, Mummery LJ held that the bare facts of a difference in status and a difference in treatment are not without more sufficient to amount to a prima facie case of unlawful discrimination.
22. Further, unfair or unreasonable treatment by an employer does not of itself establish discriminatory treatment: Zafar v Glasgow City Council (1998) IRLR 36. It cannot be inferred from the fact that one employee has been treated unreasonably that an employee of a different protected characteristic would have been treated reasonably. However, whether the burden of proof has shifted is in general terms to be assessed once all the evidence from both parties has been considered and evaluated. In some cases, however, the Tribunal may be able to make a positive finding about the reason why a particular action is taken which enables the Tribunal to dispense with formally considering the two stages
English Nationalism
32. Mr Linsell described in his siatement what he believed it meant to be an English nationalist. He defined a nation as a group of people with a communal history, language, culture, ancestry, identity and sense of belonging. He said:
“A common religion often also plays a part in binding together a nation. A nation is an extended family with informal and hard to define boundaries.”
33.
He went on to describe a nationalist as:
“Someone who gives political expression to their feelings of affection for and loyalty to their nation.”
Case No. 1800958/2016
34. A nation was to be distinguished from a state, which was a political entity claiming ownership of a territory and the right to enact and enforce laws in that territory. His witness statement set out a historical perspective on the development of the English nation going back to the mention of the Angli by Tacitus in 98AD.
35.
His statement said at paragraph 29:
“English nationalists wish to preserve the English nation and promote its welfare. In this they are like Indian, Scottish and other nationalists. English nationalists generally do not want special favours they just want the English, the largest ethnic group in England, to be able to enjoy the same statutory rights, benefits and privileges that other communities enjoy.”
36. In his supplementary witness statement the claimant explained his childhood belief that England, Scotland, Wales and Ireland were all one united country, and how through football he became aware of the differences between those different countries. He had not been active politically until his late 30s when through a friend he discovered that there were political parties who would “stand up for England and the English.” This led to him joining the English Democrats in 2004. He describes his philosophy as follows:
“English nationalism is the nationalism that asserts that the English are a nation and promotes the cultural unity of English people. In a general sense, it comprises political and social movements and sentiment inspired by a love for English culture, language and history, and a sense of pride in England and the English people. English nationalists often see themselves as predominantly English rather than British.”
37. The claimant believes that the establishment of a separate Parliament for England would encourage the people of England to become more aware of their English identity. In paragraph 49 of his supplementary witness statement he said the following
With territory as a common factor, nationalism can focus on the common descent of a race or solely on a national identity which does not depend upon ancestry and race; my focus is on the latter.” [Emphas s as original]
Respondents’ Submission
76. Ms Checa-Dover submitted that the claimant’s particular brand of English nationalism failed to satisfy criterion (e) in the Grainger test. She referred to the postings made by him on Twitter after the termination of his assignment, but suggested that these represented his views at the time. They included the posts summarised above. She also relied on the contemporaneous press article about use of a machine gun and submitted that these views could not be regarded as compatible with human dignity or anything other than in conflict with the fundamental rights of others. She therefore submitted that the claimant had failed to establish that his philosophical belief was protected under section 10 of the Equality Act 2010.
81. He submitted that the respondents had failed to show that they did not contravene section 13 and that the main reason for his abrupt termination was his activity as an English nationalist.
82. The written submission went on to assert that this was a protected characteristic under section 10. Mr Morris addressed the factors set out in Grainger. He also suggested that the matter would have been different had the claimant been a woman or from an ethnic minority because the use of two different names would not have caused any enquiry.
83. In his oral submissions Mr Morris emphasised that seeking to get Muslims to
tone it down” was simply a way of saying that Islam was acceptable as long as it did not break English law. The views on border control expressed by the claimant were in line with the views of the UK Government which vigorously defended its borders as a sovereign state, and the situation the claimant had been talking about when interviewed had been where Illegal immigrants had been storming the border posts in line with what had been happening in Hungary at the time. He invited us to uphold the direct discrimination complaints.
Discussion and Conclusions – Philosophical Belief?
84. The parties were agreed that the relevant authority was Grainger. Our task was to assess the beliefs of this claimant, not whether a belief in English nationalism in the abstract is a protected characteristic. We concluded that the claimant’s beliefs went beyond the English nationalism described by Mr Linsell and by the claimant in his supplementary witness statement. Neither statement expressed any view on Islam, yet a strong anti-Islamic theme was evident in his beliefs from the following matters.
85. Firstly, at the time of the alleged contravention of the Equality Act 2010 the claimant had been quoted in an online article about the desirability of setting up a machine gun to take out a few illegal immigrants coming through the Channel Tunnel. The claimant explained the context in which he made this remark, namely that a number of individuals were storming border control posts, and also suggested that he had been misquoted because he had referred to automatic weapons not to a machine gun. However, whatever the context and precise wording, he clearly advocated killing some illegal immigrants to deter others.
86. Secondly, at the time the claimant had made posts on Facebook about “Banning the Burqa” and how a woman wearing a headscarf was not welcome in the UK.
87. Thirdly, since the termination of the assignment the claimant had posted a number of Tweets which included comments about Islam being only for the insane; that Japan had had the sense to ban Islam; and that Muslims were always the ones being ethnically cleansed and he wondered why that was. He also did not dispute that at times he had used the hashtag #RemoveAllMuslims”.
88. The claimant’s evidence under questioning in this hearing was that Islam in its current form needs to banned unless it is “Anglicised” and “toned down.” He denied that he held that view in May 2016 when the first respondent terminated his assignment, and we considered carefully his assertion that the views subsequently expressed on Twitter were not his views at the time. We unanimously rejected that argument. The only matter he could identify as having changed was his discovery that Japan had apparently banned Islam. There was no other evidence to support any significant step change or development in his views. We concluded that this discovery about Japan simply fortified views he already held. It did not cause him to change his views.
89. We therefore concluded as a question of fact that his anti-islamic beliefs were part of his belief in English nationalism at the time of the termination of his assignment.
90. Having made that determination we applied the Grainger test. We were satisfied that these beliefs were genuinely held by the claimant and they were not simply an opinion or a viewpoint but represented a belief about something of a weighty and substantial aspect of human life, namely national identity. The beliefs were also, we concluded, ones which satisfied the test of being serious, cohesive and important, and were cogent in the sense of being clearly expressed.
91. The crux in our view was whether those beliefs were compatible with human dignity or fundamental rights. In in our judgment they were not. Aspects of the claimant’s belief were incompatible with the right to life in Article 2. Article 2 admits that deprivation of the right to life may be appropriate where force which is no more than absolutely necessary is used, but the concept of using automatic weapons on illegal immigrants and taking a few out” to deter others, even if those immigrants are “storming” border posts en masse to overwhelm a border post and gain entry to the country in our judgment goes far beyond force which would be no more than absolutely necessary. Such a situation is not to be equated, as Mr Morris in one question about World War Two implied, with an armed invasion by a hostile foreign power.
92. Similarly the freedom of religion guaranteed by Article 9 is infringed by views which are to the effect that slam in its current form should be banned if not Anglicised and toned down. That view is not compatible with Article 9. It is based on two stereotypical assumptions: firstly, that offensive practices such as female genital mutilation or “grooming’ are peculiarly or predominantly matters to do with the Islamic faith or Muslims, a view unsupported by any evidence before us; and secondly that all behaviour by Muslims must be taken to be a representation of Islam as a religion.
93. We also considered that there was a likely violation of Article 14 which guarantees that the substantive rights should be enjoyed without discrimination on the grounds of religion. Those substantive rights include the right to liberty under Article 5. The hashtag “#RemoveAlMuslims” can only be construed as indicating coercive removal dependent on religion, and that would inevitably involve infringements of the liberty of Muslims who did not wish to be removed from the UK.
94. As a consequence the Tribunal unanimously concluded that the claimant’s philosophical belief in English nationalism was not a protected characteristic in May 2016 because elements of it (expressed both before and after the termination of his assignment) were incompatible with the fundamental rights guaranteed by the European Convention on Human Rights. On that ground alone the complaint of direct discrimination because of philosophical belief failed and was dismissed,
Discussion and Conclusions – Direct Discrimination – Philosophical Belief
95. The Tribunal then addressed the question whether there had been any contravention of section 13 of the Equality Act 2010.
96. We decided to approach this as if the claimant’s belief in English nationalism had been a protected characteristic just in case we were wrong about that. That was the first protected characteristic we addressed as it was at the heart of the evidence and submissions in the claimants case. His reliance on sex and race discrimination was ancillary to that main complaint.
le. Intelligible and capable of being understood – see paragraph 34 of Harrop v Chler Constable of Dorset Police UKEAT/0234/15/DA.
106. Assuming for these purposes that his belief in English nationalism was a protected characteristic, the Tribunal was satisfied that the claimant had shifted the burden of proof. The following factors taken together meant that the Tribunal could reasonably have concluded, in the absence of any explanation from the respondents that his belief in English nationalism and its manifestations had a material influence on the decision to terminate the engagement…
112. However, the burden having shifted, the Tribunal was unanimously satisfied that the respondents had shown that the belief in English nationalism (had it been protected) was not an effective cause.
David Franey
Employment Judge Franey
13 October 2017
JUDGMENT AND REASONS SENT TO THE PARTIES ON
18 October 2017
FOR THE TRIBUNAL OFFICE”
