Critical Race Theory and the Equality Act

In previous articles, we have considered whether veganism and vegetarianism might be “philosophical beliefs” for the purposes of the Equality Act 2010 – meaning that the holder of the belief receives protection from discrimination in relation to said belief. The case of Grainger plc v Nicholson confirmed that a belief will only be philosophical if it:

• is genuinely held;
• is a belief, as opposed to an opinion or viewpoint based on the present state of available information;
• is related to a weighty and substantial aspect of human life and behaviour;
• has a certain level of cogency, seriousness, cohesion and importance; and
• is worthy of respect in a democratic society, not being incompatible with human dignity or in conflict with fundamental rights of others.

In Casamitjana Costa v League Against Cruel Sports, Mr Casamitjana’s veganism was found to be a philosophical belief under the Grainger test. This case reinforced the idea that there is a high bar to be met when looking to prove that a belief is “philosophical”. Mr Casamitjana’s beliefs were genuine and had a significant impact on his life – for example, he:

• ate a 100% vegan diet, avoiding foods that could potentially harm animals in their production;
• avoided using products tested on animals;
• would not allow any food or product containing animal products into his home;
• avoided relationships with non-vegans;
• only worked in the field of animal protection; and
• walked rather than using public transport, to avoid accidental crashes with animals.

Despite the unusual circumstances of that case, the decision in Casamitjana has raised questions regarding the true scope of philosophical beliefs. In our article on vaccine scepticism, we addressed whether “vaccine sceptics” might be able to argue that their vaccine scepticism is a philosophical belief, and therefore subject to Equality Act protection.

There have also been several recent cases involving “gender-critical” beliefs. The nature of such beliefs varies by individual, but generally it is a belief that sex is biological and cannot be changed. In the high-profile case of Forstater v CGD Europe, the Employment Appeal Tribunal confirmed that gender-critical beliefs could be philosophical beliefs and therefore protected under the Equality Act 2010.

This all leads up to the present case of Corby v ACAS. Mr Coby was employed as a senior mediator by ACAS. In August 2021, he made a post on ACAS’s internal employee communications platform, stating that critical race theory is divisive because it portrays white people as racist, and that a better approach was that of Martin Luther King, in that people should be judged by the content of their character rather than the colour of their skin.

Critical race theory, like gender-critical beliefs, is more complex than can be explained in a brief paragraph of an employment law article – but, to summarise, it proposes that racism is embedded in society, through legal systems and government institutions and the laws and policies that they uphold, rather than simply being the result of individual prejudice.

Some ACAS employees complained that Mr Corby had demonstrated a “deep-rooted hatred towards black and minority ethnic people who challenge racism”, and that he was “promoting racist ideas”. They also questioned whether ACAS should continue to employ him, saying that they would not feel “safe to be in contact with him in person”. While ACAS dismissed these complaints, they did instruct Mr Corby to remove his posts, which included criticism of the Black Lives Matter movement. Mr Corby took ACAS to the Employment Tribunal, on the grounds that he had been discriminated against for his opposition to critical race theory, which he argued was a philosophical belief.

At a preliminary hearing, the Tribunal applied the Grainger test to Mr Corby’s case. They found that Mr Corby’s beliefs on race were genuinely held and related to a substantial aspect of human life and behaviour. His beliefs were also deemed to be cogent and cohesive, and while Mr Corby had described them as “views” in his witness statements, the use of the word “views” rather than “beliefs” was irrelevant – they were deeply held and affected the way he lived his life more than mere opinions would. Finally, although some of Mr Corby’s colleagues objected to his beliefs and found them offensive, his beliefs essentially related to finding a way of eliminating racism from society and were therefore clearly worthy of respect. It was difficult to see how anyone could consider them as being incompatible with human dignity or the fundamental rights of others. For all these reasons, the Tribunal held that Mr Corby’s beliefs were philosophical beliefs, and therefore capable of protection under the Equality Act.

In the wake of Forstater, Corby seems to be another case which potentially widens the ambit of “philosophical belief”.  It is important for employers to be cautious and understand that beliefs, such as “gender-critical” beliefs and an opposition to critical race theory, may be protected in much the same way as religious beliefs. Failure to properly consider the scope of the protection of “philosophical beliefs” could easily lead to unexpected discrimination claims.

If you need any advice regarding disciplining or dismissing an employee, or on a potential discrimination claim, please get in touch at [email protected]