Believe in Father Christmas? You could be protected by Santa laws...
The law prohibits discrimination on grounds of religion or belief and from harassment or victimisation at work. What, however, is a religious belief? Unlike other characteristics protected from discrimination, like sex and race, when it comes to religion and belief it is not immediately clear what exactly should be protected. What if your beliefs are somewhat unconventional? Do they count?
Since it is the festive season let’s say that an employee, Julian, genuinely believes in Santa Claus. The messages passed to him by parents and grandparents at a young age have remarkably remained in Julian’s mind, unchallenged throughout his 44 years. His mind as a child formed a belief which he simply accepted as true.
One afternoon in early December Julian’s colleague, Liam, is doing some photocopying and overhears a conversation Julian is having with Vicci, his line manager: ‘You want next Tuesday off for what?’, asks Vicci. ‘I want to go and see Father Christmas, he’s coming to the shopping centre next week’, announces Julian.
Vicci asks if he is planning to take a nephew, but Julian explains that he is going alone. The trip is just for him in order to tell Father Christmas what he wants for Christmas.
At this point Liam bundles up the photocopying and moves just out of view. This is something he just has to hear….‘You want to see him...to tell him what you want for Christmas?
Julian doesn’t get his day off despite persistently pleading with both Vicci and the Head of Department for the rest of the week. But the Friday before Father Christmas’ big appearance at Debenhams Julian’s colleagues, Clare and Rachel, are given that Tuesday off to go Christmas shopping.
Julian is angry and upset that his colleagues are allowed the day off and not him. He desperately wanted to see Santa. He’d made his list and Santa was only in town for that one day.
To make matters worse for Julian, for the rest of the week he is greeted in the office by sprinklings of white confetti over the floor, especially around his desk. Returning from his lunch break on Wednesday, Vicci’s PA starts singing a poor rendition of Greg Lake’s I Believed In Father Christmas. Vicci sits in the corner grinning while a member of the accounts team starts an even more out-of-tune chorus of Santa Claus Is Coming To Town. A mince pie is placed on Julian’s chair which he sits on by mistake.
Julian feels humiliated. But has he suffered discrimination because of his beliefs? The law defines religion or belief discrimination as ‘any religion, religious or philosophical belief’. What does this cover?
The Employment Appeal Tribunal has held that, for a belief to qualify for protection, it must be genuinely held. It is not the tribunal's function to assess the 'validity' of a belief by some objective standard, but evidence may be needed to establish that the belief is genuine.
Further, it must genuinely be a belief, rather than just an opinion. It must be a belief as to a weighty and substantial aspect of human life and behaviour. It must have cogency, seriousness, cohesion and importance. It must 'have a similar status or cogency to a religious belief'.
Finally, it must be worthy of respect in a democratic society, not incompatible with human dignity, and not conflict with the fundamental rights of others.
It might not be too far-fetched to imagine, if Julian’s case were true, that his belief in Father Christmas might qualify for protection from religion or belief discrimination. Julian’s belief need not be shared by others and a Tribunal would assess the belief subjectively, i.e. as to what Julian actually believed.
It is certainly arguable that Julian’s belief is worthy of respect in a democratic society, is not incompatible with human dignity, and doesn’t conflict with the fundamental rights of others. In our times of austerity and social inequality, is a belief in Santa just the kind of thing we need to restore some dignity?
It would certainly be open to argument by Julian that a belief in Santa is cogent, serious, cohesive and important. Whether that would be accepted by a Tribunal is a whole other matter though. Still, if Niko Alm in Austria is permitted to wear a pasta strainer on his head in his driving licence photo because of his 'pastafarian' beliefs, who knows...?
Juliette Franklin is a solicitor in the employment team at Russell Jones & Walker