Bill Shankly once famously said “Some people think football is a matter of life and death. I don't like that attitude. I can assure them it is much more serious than that”, and for many, this epithet rings loud and true, with many treating supporting their club akin to a religious belief. The case of McClung v Doosan Babcock Ltd and others tested this before a court, and in particular, looked at the question of whether supporting a football club could be classed as a “philosophical or religious belief” under the Equality Act 2010 (the Act).
Background
Mr McClung (“M”) worked as a subcontractor for Doosan Babcock (DB) and claimed a manager at DB denied him further work because she was a Glasgow Celtic fan. As any football fan worth their salt will know, Glasgow Rangers (“Rangers”) and Celtic are bitter local rivals. He brought claims for unfair dismissal and discrimination in 2019 and was heard before Scottish Employment Tribunal. There were a number of issues to determine in relation to Mr McClung's claims, including in respect of his employment status.
M had been a fan of Rangers FC for 42 years and considered it a major part of his life. Supporting Rangers was a crucial part of his belief system, and he viewed attending games at Ibrox (Rangers’ home ground) as akin to attending church on a Sunday morning. As a result, he felt the club was motivating him to be the best he could in accordance with the club’s values. Moreover, he believed that supporting the club motivated fans to respect others and contribute to society in a similar manner to other religious groups protected under the Act, such as supporting the club’s charitable foundation and other corporate and social responsibility activities.
Decision
The critical issue at the heart of the case was whether M’s support of Rangers amounted to a “philosophical or religious belief” under section 10 of the Act. Judge L Wiseman heard the case and ruled that M held a belief in so far as being an active supporter of the club.
The legal test for what amounts to a philosophical belief is set out in the case of Grainger plc and others v Nicholson. The judge used this test to ascertain if M’s support of the club constituted a philosophical belief under the Act.
The Grainger test requires that any such belief 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.
Whilst it was not disputed that M’s belief in supporting Rangers was genuinely held, his claim did not succeed in satisfying the other four criteria required under the Grainger test.
Was it a belief and not an opinion or viewpoint based on the present state of information available?
It was acknowledged that the law in this area had moved on since 2010 when the Act came into force. However, the Explanatory Notes to the Act are still useful tools for interpreting the legislation. The Explanatory Notes state that, although humanism and atheism would be acceptable beliefs, supporting a particular football team or political party would not qualify as a philosophical belief. Additionally, the judge had regard to earlier cases such as McEleny v MOD where support for, or active membership of a political party was not determined to be a philosophical belief for the purposes of alleging discrimination; and Lisk v Shield Guardian Co Ltd and others which said that there needed to be a religious or philosophical viewpoint underpinning the support. As a result, the judge decided that M’s belief did not reach this standard.
Did the belief relate to a serious and substantial aspect of human life and behaviour?
Support for a football club was deemed comparable to a lifestyle choice. It did not hold equivalent importance or consequence to society when compared with weightier issues such as ethical veganism (Casamitjana) or gender-critical beliefs (Forstater), which had been determined by the courts to amount to philosophical beliefs. The judge drew parallels to the Conisbee v Crossley Farms Ltd case in which the claimant in that case unsuccessfully argued that his vegetarianism should be classed as a protected philosophical belief. In Conisbee, the Tribunal decided that although there were many different reasons behind vegetarianism, there was not a single cohesive basis or belief. In M’s case, the fact that there was a multitude of Rangers' fans with differing reasons for their support, and with their support emanating in different ways meant that M’s belief did not relate to a weighty and substantial aspect of human life and behaviour.
Was there a level of cogency, seriousness, cohesion and importance?
M argued that the overwhelming majority of Rangers fans shared strong, genuine beliefs regarding spending their money supporting the team, having loyalty to the Monarchy, and possessing strongly held Unionist views. The judge, however, decided that there was very little amongst fans to suggest that such common beliefs were held among the club’s supporters. It was not enough that only some fans share similar views as the only common factor was the fans' desire to see their team succeed on the pitch. M’s belief did not, therefore, have the required level of cogency, seriousness, cohesion and importance.
Was it worthy of respect in a democratic society not incompatible with human dignity and not conflict with the fundamental rights of others?
Whilst the judge found that supporting a football club was worthy of a degree of respect in a democratic society, it did not invoke the same level of respect compared to issues like ethical veganism, a subject which had been the subject of significant academic research and commentary. As a result, M’s support for Rangers did not fulfil this part of the Grainger test for assessing what amounts to a protected philosophical belief.
Comment
In this case, the Tribunal found that M’s support for Rangers was not a protected philosophical belief. This meant that he could not rely upon his belief, however deeply and passionately held, as a protected characteristic in order to bring a discrimination claim under the Act.
The Employment Tribunal will need to continue deliberating and testing the limits of the Grainger criteria on a case-by-case basis as claims come before them. The full extent of broader factors that will influence the future case law remains to be seen though it is evident that the impact of beliefs in the workplace and society are important points for consideration.
It may well help employers to be mindful of certain repercussions when managing employees with different beliefs and characteristics.
Employers should always try to maintain a respectful culture which embraces a range of beliefs held by all employees. In the social media age, people are more prepared to air their beliefs; alternatively, it becomes easier to bump heads with those with differing or opposing views. Due care must be taken not only to “police” and sanction beliefs that differ or deviate from the known protected philosophical beliefs under the Act and case law, such as strong vegan beliefs or gender-critical beliefs. Football is a sport which stirs up strong passions and beliefs, particularly when it comes to a person’s support for a certain club, especially those with strong and visceral local rivalries which can be delicate issues to manage.
Although, for many football is religion, in the eyes of the law it is not.
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