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In November, we mark the end of the Great War and the service of those who have given their lives whilst defending the UK with Remembrance Sunday. Poppies are sold and worn to raise money to support service people, and to show individual respect for them.
However, for various reasons, some employers, your client included, decide that the wearing of a poppy is not appropriate for their workplace. Where an employee alleges that it is their philosophical belief that they should wear a poppy, but they are prevented from doing so by a company rule, this can give rise to a claim for discrimination under the Equality Act 2010, and is most likely what your client’s employee is referring to here.
In order for your client’s employee to bring a claim based on their belief, they would need to show that this meets the generally accepted criteria for a philosophical belief. This was first set out in Nicholson v Grainger [2009]. Under this test, to be protected, the belief must be:
• genuinely held
• not an opinion or viewpoint based on the present state of information available
• relating to a weighty and substantial aspect of human life and behaviour
• attaining a certain level of cogency, seriousness, cohesion and importance
• worthy of respect in a democratic society, and not incompatible with human dignity or in conflict with the fundamental rights of others.
In the case of Lisk v Sheild Guardian, the tribunal had to consider if a belief that wearing a poppy was necessary, met the above. The tribunal held that whilst Lisk’s view was genuinely held and not an opinion, it was too narrow to be a philosophical belief, and did not relate to a weighty and substantial aspect of human life and behaviour. The tribunal also found that it lacked cogency, seriousness and cohesion. On that basis, it was not a philosophical belief under the Equality Act 2010 and Lisk did not succeed in their claim.
Following the decision in Lisk, it is unlikely that your clients employee would succeed with a claim for discrimination for being prevented from wearing their poppy.
However, that doesn’t mean they will not be upset by this decision. It would be best if your client had a private conversation with the employee, explaining the reasoning behind the rule that is in place, and perhaps discussing with them other ways in which they could show their respects, for example by attending an Armistice Day service in their own time.
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