There are a multitude of decided cases concerning employees dismissed for exhibiting unattractive beliefs at work, but rather fewer about those sacked for the mere holding of them. Particularly in view of this summer’s riots, that makes the EAT’s decision this month in Thomas -v- Surrey and Borders Partnership NHS Foundation Trust a timely and welcome review of just how repellent your world-view has to be before it ceases to be worthy of legal protection.

The Equality Act prohibits discrimination on the grounds of religion or philosophical belief. To count as a philosophical belief for these purposes, the EHRC Statutory Code of Practice says (echoing earlier case law) that it must satisfy a number of conditions. These include being genuinely held, relating to a weighty and substantial aspect of human life and behaviour, and in particular being “worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others”, the topic for today.

In 2018 Mr Thomas was dismissed by the Trust for what it said was dishonesty in his job application (concealment of a prior conviction of a criminal rather than philosophical nature), and for what he said was his belief in “English nationalism”. As he lacked service enough to claim unfair dismissal, his case turned entirely on whether he could establish that English nationalism as a protected belief under the Act.

Thomas explained in evidence what English nationalism meant to him – that the English are a nation and have a unity inspired by a love for English culture, language, history and a sense of pride in the country and its people. He favoured self-government for England and had spent the last decade and more investing his time, money and reputation into voluntary political activism to that end, including standing serially unsuccessfully for Parliament and sundry other public offices. The Employment Tribunal accepted that if that were truly the length and breadth of Thomas’s views, he would have got over the “worthy of respect” hurdle without difficulty.

But it was not. Perhaps unsurprisingly omitted from Thomas’s witness statement was a key component of his English nationalist views, i.e. a vigorous Islamophobia evident in particular in a substantial number of social media posts. Those posts included many criticisms of both the faith and its adherents, but no similar comments about other religions. It became clear in cross-examination that Thomas’s views were not based on any actual interest in or particular understanding of Islam, and the Tribunal found that “it was in short, pure prejudice”.

But pure prejudice, whether or not founded on ignorance, is not enough to make a belief unworthy of respect for EHRC Code purposes. Many of the decided cases in both UK and European law make clear that a view does not fall outside that protection merely because it may shock or offend – there is no “fundamental right” not to suffer distress or offence through the beliefs of others.

The Employment Appeal Tribunal reviewed an extensive list of such cases, all saying broadly the same thing in slightly different terms, and ended up with the judgment in Forstater as explained here. So were Thomas’s views “akin to pursuing totalitarianism, advocating Nazism, or espousing violence and hatred in the gravest forms”, as Forstater had put it? His posts had included calls for the coercive deportation from the UK of all Muslims and suggested that “the only cost-effective way to stop illegal immigrants trying to storm through the Channel Tunnel is to set up a machine gun and take out a few people – that would stop it very quickly …….”. Perhaps realising that this might look a little extreme, Thomas had then clarified his position. It was not that he wanted them actually killed as such, he stressed earnestly, as it would probably be sufficient merely to shoot them in the arms or legs.

This fantastically graceless concession did nothing to reassure the EAT. It took the view that the forced removal of Muslims from the UK would necessarily infringe their fundamental rights, that the view that there is no place for Muslims or Islam in English society was entirely akin to Nazism’s views on Judaism, and that advocating shooting them, even just slightly, was clearly inciting violence.

Because these views were an integral part of Thomas’s beliefs, his version of English nationalism was therefore not worthy of respect and so not protected under the Equality Act, and his claim against the Trust therefore fell on its tiny face at that point.

What is superficially disturbing for employers in this decision is just how low is the bar to protection under the Equality Act. Short of these extremes, your employees can live their lives by almost whatever grim and bigoted tenets they want, even if these would distress, shock or offend other people. Dismissing them for holding such beliefs would be discriminatory. But, and it is a big but, the right to hold such views is very different from the right to manifest them, especially in the workplace. Your rights to say what you think, as opposed to just thinking it, are very much limited by the rights of others (even though not fundamental rights for EHRC Code purposes) not to be discriminated against, materially offended or distressed, frightened or threatened.

Therefore if other Trust employees had complained of Thomas expressing those views at work, there would have been no need for this long debate. Technically akin to Nazism or not, they would clearly be incompatible with the maintenance of a harmonious working environment and Thomas would have been out on his ear without recourse.