Mr S Thomas v Surrey and Borders Partnership NHS Foundation Trust and Ms A Brett: 2304056/2018
| Jurisdiction | England & Wales |
| Judgment Date | 19 February 2021 |
| Citation | 2304056/2018 |
| Court | Employment Tribunal |
| Published date | 03 March 2021 |
| Subject Matter | Unlawful Deduction from Wages |
Case Number: 2304056/2018
1
EMPLOYMENT TRIBUNALS
Claimant: MR S THOMAS
Respondents: 1. SURREY AND BORDERS PARTNERSHIP NHS
FOUNDATION TRUST
2. MS A BRETT
OPEN PRELIMINARY HEARING
Heard at: London South On: 17 July 2020
Before: Employment Judge C Hyde, sitting alone
Appearances
For the Claimant: Mr O Davies, Counsel
For the Respondents: Ms R Azib, Counsel
RESERVED PRELIMINARY HEARING
JUDGMENT
The Judgment of the Tribunal is that: -
1. the Claimant’s belief in English nationalism includes anti-Islamic views which
do not fulfil the fifth criterion in the case of Grainger v Grainger plc v
Nicholson [2010] ICR 360 and is therefore not capable of being a protected
characteristic.
2. The discrimination complaint under the Equality Act 2010 is therefore
dismissed.
REASONS
1. R easons are provided for the Judgment above as the Judgment was reserved.
They are set out here only to the extent that it is necessary to do so for the parties
Case Number: 2304056/2018
2
to understand why they have won or lost, and only to the extent that it is
proportionate to do so.
Open Preliminary Hearing Issues
2. A t a Closed Preliminary Hearing on 18 March 2020, Employment Judge Hargrove
ordered that this Preliminary Hearing should take place to determine the following
issues (p71):
a. Is English nationalism capable of constituting a philosophical belief
under section 10 of the Equality Act 2010?
b. D id the Claimant hold anti-Islamic views as part of his philosophical
beliefs at the relevant time?
c. If so, were those anti-Islamic views incompatible with the fundamental
rights guaranteed under Articles 2, 5 and 9 of the European Convention
on Human Rights, such t hat they would prevent the Claimant’s belief in
English nationalism from being a protected characteristic?
3. A lthough both Counsel addressed the Tribunal at some length about the effect of
the Convention rights in this case, the majority of the submissions addressed the
five criteria in the case of Grainger plc v Nicholson [2010] ICR 360 set out below.
It appeared to me therefore, by the end of the hearing, that the last question was
more properly posed thus:
If so, were those anti-Islamic views worthy of respect in a democratic
society, incompatible with human dignity and did they conflict with the
fundamental rights of others, such that they would prevent the
Claimant’s belief in English nationalism from being a protected
characteristic?
4. The Respondents did not dispute that the Claimant’s belief was genuinely held,
and that it was not an opinion or viewpoint based on the present state of information
available. Further, no admissions were made by t hem about t he third Grainger
criterion below a bout which they put the Claimant to proof, or about the requisite
level of cogency and coherence required to satisfy the fourth criterion. In Ms Azib’s
submission, the most material or important issue in this case was raised by the fifth
criterion: paras 28-29 [R2].
5. I was very mindful that for this Preliminary Hearing, I could make no findings of fact
about the First Respondent’s reasons for termination of the engagement. I share
the concerns which have been expressed elsewhere about the challenges of
deciding this issue as a preliminary issue.
6. In two Employment Tribunal claim forms presented on 1 November 2018, Mr
Thomas complained about the termination of his engagement on 24 July 2018 as
an act of discrimination related to religion or belief under the Equality Act 2010. He
made other complaints which were not the subject of this preliminary hearing.
7. In addition, the question of which parties were actually Respondents was not a
matter to be determined at the preliminary h earing. It was not in dispute that the
To continue reading
Request your trial