Brief Report on Judgment
In Cave vs The Open UniversityHERE, the Tribunal held a preliminary hearing to determine whether the Claimant held a philosophical belief capable of protection under section 10 of the Equality Act 2010.
The Claimant’s belief was English Nationalism. The tribunal was considering the GRAINGER criteria, listed in paragraph 24 of the linked judgment, namely .
(i) The belief must be genuinely held.
(ii) It must be a belief and not, as in McClintock, an opinion or viewpoint based on the present state of information available.
(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.
(v) 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
The Claimant’s belief failed only on the final criterion, as it was deemed unworthy of respect in a democratic society.
I am not clear as to the precise reason why this was the case and will consider this in more detail below, although in brief it was due the belief being deemed ‘racist’ and/or because the Claimant was said to advocate the ‘destruction’ of the rights of others.
If the Tribunal had found that the belief was worthy of protection under the aforesaid statutory provision, the case would have gone to trial and the Tribunal would have considered whether the Claimant was dismissed as a result of his philosophical belief.
Furthermore, at trial the Tribunal may have needed to decide whether the Claimant’s beliefs impacted on the performance of his duties as an employee.
Opinion, analysis and consideration of wider issues
Before the Grainger criteria became established, the same criteria were considered and approved in a previous case. I think it is worth quoting the reservations about these criteria expressed in a dissenting judgment:
“I have to say that I find these qualifications rather alarming, especially if they are to be applied to religious beliefs. For the reasons already noted, the court is not equipped to weigh the cogency, seriousness and coherence of theological doctrines. Anyone who feels in any doubt about that might refer to the hundreds of pages of the law reports devoted to 16 years of litigation, in mid-Victorian times, as to the allegedly "Romish" beliefs and devotions of the incumbent of St Alban's, Holborn (the litigation, entitled Martin v Mackonochie, starts with (1866) LR2 A & E 116 (Court of Arches) and terminates at (1882) 7 PD 94 (Privy Council sitting with Ecclesiastical Assessors)). Moreover, the requirement that an opinion should be "worthy of respect in a 'democratic society'" begs too many questions. As Mr Diamond (following Mr Dingemans) pointed out, in matters of human rights the court should not show liberal tolerance only to tolerant liberals.”
HERE, I set out my case against; (a) a libertarian approach to employment law allowing dismissal at will (b) the current legal position of relying on the Equality Act for protection when a person’s dismissal is related to opinions they have expressed outside the course of their employment. I have also set out a very brief and nascent outline for legal reform, with far more thinking being required.
With the above in mind, I will consider how the unsatisfactory Grainger criteria were applied in the Cave case along with some wider issues.
Paragraphs 16-18 in the Cave Judgment are key paragraphs in my view. In paragraph 16 it is stated that the Claimant viewed ethnicity and nationhood as synonymous. With respect to paragraph 17, the Tribunal implied that the Claimant’s beliefs were arbitrary i.e. he believed that one had to have British ancestry to be British but could not provide an exact date.
I do not know exactly what questions were asked and whether the Claimant’s evidence has been fairly summarised, but I am familiar with selective pedantry being employed in an attempt to deny that the British exist as a distinct ethnic group. In fairness to the Tribunal, they accepted that the Claimant’s belief was sufficiently coherent to meet this part of the Grainger test, as the bar for coherence should be a low one.
To briefly address the substantive question, the British do exist as a distinct ethnic group; being white is a necessary but not sufficient condition for being ethnically British; to deny this would be wrong and some would argue that the denial is insulting and dangerous. The Claimant seems to have taken exception to British citizens who are from and identify with, a different racial group, being regarded as British.
The view of Charles De Gaulle on the dichotomy between ethnicity and nationhood in relation to France, was as follows:
“It is very good that there are yellow Frenchmen, black Frenchmen, brown Frenchmen. They prove that France is open to all races and that she has a universal mission. But [it is good] on condition that they remain a small minority. Otherwise, France would no longer be France. We are, after all, primarily a European people of the white race, Greek and Latin culture, and the Christian religion.”
Would the views of Charles Ge Gaulle be considered ‘racist’ and ‘ethnocentric’ in some quarters in 2023?
The Claimant during his evidence opined that the Government should discriminate in favour of those who are ethnically British; he stated that the Government should discriminate in favour of those in are ethnically British when making or implementing housing policy.
Further, in a tweet which, appears to have been part of the reason for his dismissal, he stated in intemperate terms that an individual should leave Britain in response to her celebration of being African, although whether he advocated her being forced to leave Britain by the state is not clear.
The former would have made it relatively easy for the Tribunal to find that his belief fell foul of the final Grainger criterion; for reasons explained in the authorities there is a dichotomy between the ECHR and the Equality Act and in the present case, the Tribunal can employ article 14 of the ECHR (the right not to be discriminated against) with article 17, which states that nothing in in the ECHR provides a person with the right to seek the destruction of the convention rights of others.
Indeed this was used as a justification for the Tribunal’s decision as set out in paragraph 46. What I am not clear on when reading paragraphs 44-46 together, is what the Tribunal would have decided if the Claimant’s beliefs were deemed ‘racist’ (he did not in fact appear to argue that one race was inherently superior to another) or ‘ethno-centric’, but that they did not involve any specific polices that could be said to bring Article 17 above into play.
In such a scenario the Claimant would have presented his employer and possibly an Employment Tribunal with a more difficult challenge. If, as I suspect, there are many employers who would wish to dismiss an employee, purely because they held politically incorrect views, then it is better that this situation is brought to light, rather than allowing employers to hide behind pre-texts.
At paragraph 24 of the judgment, the Tribunal quoted the Forstater case, which stated that a belief would only fail the final Grainger criterion if it involved ‘a very grave violation’ of the rights of others.
Despite this passage being cited, there was no analysis in the Cave case about what should be required to constitute a very grave violation of the rights of others. Should the bar be set as high as genocide or democide or is discrimination in housing policy sufficient? Unless clear guidance is provided then the final criterion is extremely vague and places Tribunals in an invidious position of deciding whether certain beliefs are worthy of respect; Tribunals will inevitably invoke their own biases in applying this criterion, however much they may try not to.
Paragraph 25 refers to paragraph 79 of Forstater, which states that ‘totalitarian’ beliefs should be deemed unworthy of protection in a democratic society. My limited understanding of a totalitarian state in its most extreme extrapolation, would be one that regards the state as everything and the individual as nothing. This is perhaps exemplified in the philosophy of Giovani Gentile who was the ideological motivation behind Mussolini’s fascist state in Italy. Karl Popper, the mentor to the influential open border advocate George Soros, accused Plato, Hegel and Marx of providing the philosophical foundations for totalitarianism in the early 20th century. In my opinion totalitarianism is not a concept that Courts and Tribunals should be grappling with.
Even if clear guidance could be provided for its application, the final Grainger criterion poses a question about the legitimacy of certain laws when the result of opposing such laws or the general philosophy behind them, could be dismissal from one’s employment. The following passage may be of interest in considering this question:
“Fair democracy requires … that each citizen have not just a vote but a voice: a majority decision is not fair unless every-one has had an opportunity to express his or her attitudes or opinions or fears or prejudices or ideals, not just in the hope of influencing others (though that hope is crucially important), but also just to confirm his or her standing as a responsible agent in, rather than a passive victim of, collective action”.
This passage was about hate speech laws and whether substantive anti-discrimination laws could be regarded as legitimate if one was prevented from opposing them. The response to me citing it in the present context, could be to say that the Claimant being dismissed from his employment for expressing his views, is not the same as him being subject to a criminal prosecution for expressing his views; he has a choice between expressing his views and not facing the risk of dismissal from employment.
However, the threat of losing one’s employment and being potentially unemployable may be a greater deterrent than a conviction that does not involve a long prison sentence. If severe economic sanctions are pursued against those who voice opposition to human rights and equality-based legislation (using those terms loosely), then this must raise a question about the legitimacy of such laws as per the passage above. The wider economic context is also relevant, namely where those with politically incorrect views can be denied banking services, a website or access to social media; there was an EU proposal which contained a wide definition of hate speech and advocated ‘non-criminal’ penalties such as exclusion from public office or engaging in commercial activity; obviously the UK has left the EU, but this proposal is interesting to demonstrate the lengths that the current global hegemon are prepared to go to suppress dissent.
In conclusion the Cave case demonstrates the vagueness of the Grainger criteria. The Tribunals and the legislator appear to have chosen not to provide a more precise test for protecting employees who wish to express their philosophical or religious beliefs.
However, whilst it would be possible to provide a more precise test that would have protected the Claimant in Cave, the result is perhaps not surprising given the political aims of the ECHR and similar instruments like the UNDHR. These aims would justify a separate and much longer article than the present one. In brief, as l have explained ELSEWHERE, human rights legislation is based on the apparent dignity that is inherent in being human. This is a dubious concept, which is not said in the UNDHRC or ECHR to come from God. Kerry Bolton succinctly provided the following bullet point summary of the aims of human rights-based legislation:
1. The aim of imposing a humanist doctrine expressed inter alia in the Jacobin Declaration of the Rights of Man, the UNDHR & the ECHR.
2. The destruction of any state that resists global hegemony based on the above.
3. The justification for destructive actions in the name of the ‘international community’ stemming from Rosseau’s ‘general will’.
4. The anthropocentric elevation of “Man” as the ‘supreme being’ replacing God.
It is certainly true in practice, that there is a messianic component to human rights legislation. Therefore it is not surprising that those who oppose the philosophical foundations of such legislation, rarely benefit from it and often find that it is used to persecute them.
 3313198/2020 – Judgment delivered on 5.5.23  Paras 44 & 45 respectively  See Mackereth v DWP  EAT 99 para 138  (Williamson) V Secretary of State for Education & Employment –  UKHL 15, paras 59 and 60. Williamson concerned a belief in corporal punishment and whether such belief was protected under article 9. Lord Walker’s concerns have proven entirely justified  See for example C. Hills Blood of the British ‘1986’  Forstater v CGD Europe & others  UKEAT/105/20 para 62  E.g. ‘The Theory of Mind as Pure Act 1922  Karl Popper the Open Society & its enemies – Volume 1 the spell of Plato; Volume 2 Hegel & Marx; the NGO networks create by George Soros are named after this work.  Ronald Dworkin ‘Extreme Speech & Democracy’ 2006 C Vii  EUR-Lex - l33178 - EN - EUR-Lex (europa.eu)  K Bolton the ‘Tyranny of Human Rights’ 2022 p13; see also the remarks by David Pannick QC about the Arthur Redfearn case - HERE & HERE.