The ET in McClung v Doosan Babcock Ltd held that the claimant’s lifelong support for a football club (in this case, Glasgow Rangers) was not a protected philosophical belief under the Equality Act 2010. Therefore, Mr McClung could not bring claims for discrimination or harassment on this basis. This result is positive for employers, especially given that the law in this area has developed to bring what might be unpopular beliefs such as ethical veganism or gender critical views within the scope of protection under the Equality Act 2010. However, we recommend that employers continue to provide equal treatment to (and encourage mutual respect between) all staff - regardless of where their football loyalties lie. After all, the bond between teams in the workplace should remain the priority and there is still a legal risk that support for a football team could be linked to other protected characteristics, such as nationality or race, or lead to other complaints, such as bullying.
Legal background
To qualify for protection from discrimination and harassment under the Equality Act 2010 (Equality Act), an employee must show that the acts complained of relate to one of the protected characteristics set out in the Equality Act. This protection extends to treatment relating to a religious or philosophical belief.
In its 2010 decision in Grainger plc v Nicholson (Grainger) the EAT said that for a philosophical belief to be protected it must:
- be genuinely held;
- not simply be an opinion or viewpoint based on the present state of information available
- concern 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 be incompatible with human dignity and not be in conflict with the fundamental rights of others.
These tests are included in the Equality and Human Rights Commission's Employment Statutory Code of Practice, which courts and tribunals are obliged to take into account in any case they consider relevant.
Although this is a Scottish case, the ET noted that there is no difference between English and Scottish law for these purposes.
Facts
The employee, Mr McClung, had been a supporter of Glasgow Rangers Football Club (Rangers) for 42 years, spending most of his disposable income on attending their matches. He described his support of the club as a way of life: it motivates him to work harder, he savours the memories it creates between him and his family and his attendance at games is as important to him as attending church would be to those who are religious. In support of the third and fourth limbs of Grainger, Mr McClung stated that he also holds views which he claims are serious, weighty and common to Rangers fans, including:
- caring passionately about the continued union of the UK;
- loyalty to the monarchy and Northern Ireland; and
- involvement in the Orange Order.
In January 2019 Mr McClung started work as subcontractor for Doosan Babcock. He alleged that whilst he worked there, he was targeted by colleagues and managers on several occasions for supporting Rangers. In May 2019 he was given a week's notice by his manager to terminate his contract, on the basis there was not enough work for him. He believes the real reason he was terminated was because his manager was a Celtic fan and that she discriminated against him because of his support of Rangers.
Mr McClung brought a discrimination claim (amongst others) in the ET on the basis that his support for Rangers was a philosophical belief which qualifies for protection under the Equality Act.
Tribunal decision
The ET held that Mr McClung’s support for Rangers did not amount to a philosophical belief under the Grainger test. Although Mr McClung’s support for the club satisfied the first limb in that it was genuinely held, it did not meet the remaining criteria:
Be genuinely held
Mr McClung’s belief in supporting the club was genuinely held. He was an avid supporter, as demonstrated in particular by his committed attendance at matches (as well as watching them on television) and the ET noted ‘his interest and enjoyment in all things Rangers’.
A belief and not an opinion or viewpoint
The support for the club did not amount to a belief. The ET noted that the Explanatory Notes to the Equality Act state that support for a football club would not be a protected belief. Although the ET did acknowledge that the law has moved on in some respects, the ET distinguished between a belief, which is the acceptance of something you consider to be true, and support, which is being interested in and concerned for the success of something. Mr McClung’s support for Rangers was more akin to support for a political party, which has previously been rejected as amounting to a philosophical belief by the courts.
Weighty and substantial aspect of human life and behaviour
Supporting a football team is not equivalent to a belief in something weighty and substantial. Although Mr McClung’s avid support for the club was of great importance to him (as it is to countless other football supporters across the world) the ET considered there was nothing beyond this ‘lifestyle choice’ which demonstrated the impact of his support on weighty and substantial aspects of human life and behaviour.
Attain a certain level of cogency, seriousness, cohesion and importance
Mr McClung’s support for Rangers did not centre on a fundamental question which has wider importance for humanity as a whole (unlike, for example, a belief in ethical veganism). Whilst Mr McClung had attempted to argue that serious issues such as unionism and loyalty to the monarchy were common among supporters, these did not meet the relevant threshold for cogency and cohesion - they were not prerequisites for being a Rangers fan, who show their support in different ways across the globe and it is rather the desire for the team to do well, which links the fans together.
Worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others
Although the ET accepted that Mr McClung’s belief in supporting Rangers was certainly worthy of respect, in that it should be entirely up to him which football club he supports, this was not sufficient to reach the required threshold. It did not, for example, invoke the same respect in a democratic society as matters such as ethical veganism or the governance of a country.
Fladgate comment
It will no doubt be a relief to employers that support for a football team is unlikely to amount to a philosophical belief (so does not qualify for protection from discrimination under the Equality Act), especially as workplace “banter” or conflict relating to football is fairly common.
Although this is only an ET level decision (which does not have to be followed by other courts) the fact that the strong parallels between religion and support for a Scottish football team was not enough to meet the threshold for that support amounting to a protected characteristic, means it is unlikely that support for an English football club would do so.
That said, we recommend employers continue to provide equal treatment and support for all staff, regardless of where their football loyalties lie. Also, they should continue encouraging that mutual respect is demonstrated between staff and take disciplinary action if it is not. After all, the bond between teams in the workplace should remain the priority and there is still a legal risk that support for a football team could be linked to other protected characteristics, such as nationality or race, or lead to other complaints such as bullying.
