Is a belief in English nationalism entitled to protection under the Equality Act 2010? The recent case of Thomas v Surrey and Borders Partnership NHS Foundation Trust has wrestled with this question.

The facts

Mr Thomas briefly worked for an NHS trust, before his engagement was terminated, allegedly on the basis that he had failed to disclose a prior criminal conviction. Mr Thomas brought a claim against the trust, arguing that the real reason for his treatment was a ‘protected belief’ he held in English nationalism.

An Employment Tribunal concluded that Mr Thomas’ beliefs are not protected under the Equality Act 2010, not least because he held very particular views about the ‘coercive removal’ of British Muslims from the UK. Mr Thomas appealed.

The EAT’s decision

The Employment Appeal Tribunal considered the matter and ultimately agreed with the Employment Tribunal’s previous decision. The EAT acknowledged that English nationalism could conceivably amount to a philosophical belief worthy of legal protection. However, given the precise nature of some of the anti-Muslim beliefs which Mr Thomas held,
their incompatibility with the human dignity of others meant that they did not reach the threshold required by the Equality Act 2010.

Mr Thomas tried to argue that as a result of previous case law (including the decision in Forstater v CGD Europe), only beliefs akin to Nazism or which espouse violence and hatred should necessarily fall outside the protection provided by the Equality Act. Mr Thomas argued that his views were not so extreme as to be unprotected. The EAT disagreed.

Pointers in both directions

This case suggests there could be further work to be done by the courts and tribunals in clarifying the law in this area. 

In the right circumstances, beliefs in ideologies such as English nationalism could potentially be protected. At the same time, the EAT expressed the view that those cases in which beliefs will fall outside the ambit of protection could be wider than previously thought. The EAT speculated that any beliefs involving intolerance or discrimination may be unprotected. For now, we will have to await further decisions in future cases before we can be more certain about the precise ambit of the protection afforded to these sorts of beliefs.

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