Out of left field: Football fans claim protection under the Equality Act 2010

When does a passion for sport become a workplace issue?  In McClung v Doosan, a Scottish employment tribunal was asked to consider whether support for a football club could entitle an employee to protection against discrimination. 

Philosophical beliefs in the workplace

In recent months, there has been an uptick in employment tribunal cases in which claimants have argued that their secular beliefs are protected by the Equality Act 2010 (the Act).  The Act protects individuals from being discriminated against on the grounds of their philosophical beliefs but only where they can prove their beliefs meet the so-called Grainger test (under which the court will assess aspects of the alleged belief including authenticity, cogency and seriousness). Climate change, vegetarianism, anti-fox hunting and spiritualism have all been asserted as being protected beliefs, with varying and often surprising outcomes.  Now sports fans are getting in on the act.  

Protection for football fans?

In McClung v Doosan Babcock, the Claimant argued that he had been discriminated against on grounds of his philosophical belief: his support for Glasgow Rangers FC. He alleged that he had been denied work by his manager, who supported arch-rivals Celtic FC.

The employment tribunal considered, as a preliminary point, whether supporting Rangers was capable of amounting to a philosophical belief, entitling Mr McClung to protection against discrimination in the workplace.

The Claimant gave evidence to the tribunal about his belief as follows:

• He had been a supporter of Rangers for 42 years, since the age of 8.  He had been a member of the club since age 11.
• He spent most of his income (after paying household bills) on attending matches, as well as subscribing to Sky Sports to watch match coverage and commentary.
• He attended one or two matches a month.  This gave him something to look forward to and he woke up “buzzing" on match days.

Key to his argument that he should be protected against discrimination was his assertion that being a football supporter was a way of life and as important to him as attending church is for religious people.

What is a philosophical belief?

The test for determining whether a belief qualifies for protection under the Act is derived from the Employment Appeal Tribunal decision in Grainger plc v Nicholson. The Glasgow employment tribunal applied the five-limb Grainger test, concluding that Mr McClung’s support for Rangers fell short of satisfying four of the five elements. There were several noteworthy aspects of the judgment:

• Support (in the sense of being actively interested in and concerned for the success of) is not the same as a belief (in the sense of acceptance of a philosophy or doctrine).  The tribunal found that enjoying attending matches and wishing for a team to be successful fell short of constituting a belief.
• Support for a sports team was akin to a lifestyle choice and as such failed to meet the bar of constituting a belief as to a weighty and substantial aspect of human life and behaviour.  Deriving enjoyment could not be equated with a belief that had larger consequences for humanity as a whole. 
• Although the Claimant’s support for Rangers was held to be worthy of respect, insofar as it was for him to decide which football team he wished to support, it did not invoke the same level of respect in a democratic society as matters such as ethical veganism or governance of a country, both of which have been the subject of academic research and commentary.
• The tribunal found that Rangers fans expressed their support for the club in different ways.  Much of what the Claimant had described related to his personal choices and there was nothing to suggest that all fans behaved in the same way.  The belief therefore lacked the required level of cogency, seriousness, cohesion and importance.

Mr McClung gave a compelling account of his passion for football and the pivotal role it played in his life.  However, he was unable to persuade the tribunal that being a football fan was a belief system that related to a weighty and substantial aspect of human life and behaviour and was therefore protected by the Act.

Inclusivity is the watchword

In reaching its judgment, the tribunal acknowledged that Mr McClung was an “avid supporter” with a genuinely held belief for which he was entitled to respect. This, perhaps, is the most important takeaway point for employers.  

It is clear from the many cases in this area that tolerance for minority beliefs in the workplace is important if employers wish to avoid discrimination claims. While tribunals may make fine distinctions between the seriousness of different belief systems, employers should practice inclusivity to avoid litigation. The expression of conflicting views and opinions needs to be managed carefully and a more tolerant acceptance of diverse views should be built into workplace practices.  

No doubt many football fans would disagree with the tribunal’s characterisation of support for their team as a mere lifestyle choice. Employers should be wary of belittling the significance of such beliefs too!

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