justice

Does supporting a football team give Equality Act protection?

With the next wave of football fever about to take hold, employers may be planning how best to manage workers’ World Cup exuberance.

It’s well established that events like this can bring huge benefits to workforces, helping raise spirits and build togetherness. Employers that embrace the possibilities, perhaps by screening the matches or encouraging gentle competition between colleagues, may reap rewards in terms of staff wellbeing and longer-term productivity and loyalty.

However, getting this right takes careful thought and good communication long in advance. In the heat of a huge sporting occasion, staff can easily cross the line. One risk is that someone will be subjected to unwelcome behaviour, maliciously or otherwise. This is something to keep a close eye on because employers have a duty to protect people at work. There are all sorts of potential repercussions, including bullying-related absence. And where the treatment relates to a protected characteristic – disability, race, sex, sexual orientation, for example – there is a very real chance that a harassment-based discrimination claim could follow.

The employment tribunal (McClung v Doosan Babcock Ltd) recently considered the case of a staunch Glasgow Rangers supporter who reportedly claimed to have been denied work as a subcontractor because of a manager’s support for rival team, Celtic. A preliminary hurdle for Mr McClung to clear was establishing that his support for Rangers was a ‘philosophical belief’ (akin to beliefs such as Humanism and Atheism) that qualified for protection under the Equality Act.

Philosophical belief is not precisely defined, but it has been established that it must:

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

It was not disputed that Mr McClung’s belief in supporting Rangers was genuinely held. He was a devoted fan, having supported the club for most of his life. He spent most of his spare income on games. He was said to wake up ‘buzzing’ on match days, believing it a way of life that created lasting memories for him, his father and his son. He considered supporting Rangers to be as important to him as it was for religious people to go to church.

However, the tribunal found that this wasn’t a philosophical belief. Mr McClung’s support for Rangers was analogous to support for a political party, which case law has established doesn’t amount to a philosophical belief. Mr McClung’s support for his club meant being actively interested in the team and wanting it to do well. That wasn’t the same as having a ‘belief’, which is more like an acceptance that something exists or is true.

Mr McClung also failed to meet the third criterion. Support for a football club was more a lifestyle choice than relating to a substantial aspect of human life and behaviour. And while supporting Rangers was a serious and important matter for Mr McClung, it lacked the required characteristics of cogency, cohesion and importance. That’s because support for Rangers has no larger consequences for humanity as a whole. It’s about wanting the team to do well and has no impact on how people live their lives.

The final nail in the coffin was the tribunal’s finding that the fifth criterion wasn’t met either. While Mr McClung’s support for Rangers was worthy of respect in the sense that it was for him to decide which football team to support, that didn’t invoke the same respect in a democratic society as ethical veganism or the governance of a country, for example.

Mr McClung’s belief was therefore not a philosophical belief and he couldn’t rely on it to claim discrimination under the Equality Act.

Cases such as these are always important in taking account of different and evolving ‘beliefs’. While Mr McClung wasn’t successful, that’s not to say that aspects of someone’s life that might not readily be considered philosophical beliefs would not. That’s why it’s vital that employers understand the fundamentals of Equality Act protection and train managers and others at work to recognise potential problems. Perhaps above all, ensuring everyone is treated fairly, whatever their particular characteristics (including the things that are important to them, and the things they stand for), makes for a better workplace and a lower employment law risk.

For advice about discrimination or any other employee or workplace issue, get in touch with Meredith Hurst or another member of our Employment Law team on 020 7377 2829.