united-kingdom discrimination judiciary legal-doctrine
What would be required to overturn the Grainger test?
<p>It seems to me the Grainger test seriously risks politicising the judiciary, leaving them to decide, quite undemocratically, in fact, on behalf of the populous what types of beliefs are or aren't acceptable or more specifically &quot;worthy of respect&quot; within a &quot;democratic&quot; society, thereby turning the judiciary arm of the state into a sort of ideological arbiter that chooses or refuses to officially certify and endorse certain ideologies as &quot;worthy of respect.&quot;</p>
<p>Further this determination (ie to apply the Grainger test) is quite loaded and subjective (see the differing rulings between first and appellate instances of Forstater for an illustration of this) to the sympathies of the particular judge in each case, thereby seriously threatening to erode the rule of law based on capricious ideological whims of each particular judge.</p>
<p>Seen from another angle, it can be pointed out that there is no parliamentary designated or transparent process to designate beliefs as worthy or unworthy of respect so there is truly no democratic oversight or accountability on these determinations at all, given the inherent and  painstakingly ensured independence of the judiciary.</p>
<p>What would be needed to mount such challenges to the Grainger test and challenge the validity of this apparent power grab by the judiciary?</p>

<h2>The judiciary <em>is</em> an arm of the state</h2>
<p>There is no “power grab” by the judiciary: they are simply exercising the Constitutional power they have to act as a <a href="https://en.wikipedia.org/wiki/Court_of_record" rel="nofollow noreferrer">court of record</a> (given to them in the Supreme Court Act) and resolve disputes. In the UK (among many others), judges get paid to interpret the law - both statute and customary law - weigh the evidence and <em>make decisions</em>. You seem to think this isn’t their job but it is <em>precisely</em> their job.</p>
<p>In general, judges try to leave their personal and political opinions outside the court, however, they are human and mistakes are sometimes made, from bias or otherwise. That’s why there <em>is</em> an appeals system - one judge has made a decision, 3 or more others review it.</p>
<p>The Grainger test is as much a part of the law of the UK as the Equality Act is. It can be changed by an act of Parliament or it can be changed by a future appellate court at the same level or higher in the hierarchy.</p>
<p>Parliament’s role is to write laws of general applicability, the administrations role is to administer those laws, including making decisions about individuals, the judiciaries role is to decide specific controversies by interpreting the law and providing guidelines for consistent decision making by future judges and officials.</p>

<p><a href="https://www.bailii.org/uk/cases/UKEAT/2009/0219_09_0311.html" rel="nofollow noreferrer">The &quot;Grainger&quot; test</a> is an interpretation of &quot;philosophical belief&quot; under the <em>Employment Equality (Religion or Belief) Regulations 2003</em> (repealed, but the relevant portions of which are now included in the <em>Equality Act 2010</em>; it says, &quot;Belief means any religious or philosophical belief&quot;).</p>
<p>I see three avenues for change: legislative reform; an appeal to the Court of Appeal; or convincing the Employment Appeal Tribunal that it is using the wrong test.</p>
<h2>Legislative reform</h2>
<p>Given that this is a statutory protection, if the legislative branch believes a tribunal or judiciary has misinterpreted it or believes that it is no longer appropriate, this protection for philosophical beliefs could be removed or clarified by an Act of Parliament.</p>
<h2>Appeal</h2>
<p>The Grainger test was developed by the Employment Appeal Tribunal and applied by Employment Tribunals since. There are procedures for judicial review of tribunal decisions. One could appeal <strong>an application of the Grainger test</strong> by the Employment Appeal Tribunal. It would end up at the Court of Appeal which could potentially announce that the Grainger test for what makes something a &quot;philosophical belief&quot; is the wrong test.</p>
<h2>Convince the tribunal the Grainger test is the wrong test</h2>
<p>The Employment Appeal Tribunal is free to update the approach to the term &quot;philosophical belief.&quot; If the current approach is unworkable in some way, one might convince the tribunal it needs to update the test.<sup>1</sup></p>
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<h2>This was a power <em>grant</em> not a power <em>grab</em></h2>
<p>I now am moving beyond the literal scope of your question to address what I see as unstated premises behind your question.</p>
<p>The Employment Appeal Tribunal is a <a href="https://en.wikipedia.org/wiki/Tribunals_in_the_United_Kingdom" rel="nofollow noreferrer"><em>tribunal</em></a>, not a court. While it is a <a href="https://en.wikipedia.org/wiki/Tribunals,_Courts_and_Enforcement_Act_2007" rel="nofollow noreferrer">part of a unified judicial system</a>, and its members are guaranteed judicial independence, it is part of the <a href="https://en.wikipedia.org/wiki/United_Kingdom_administrative_law#Tribunals" rel="nofollow noreferrer">administrative state</a>. Parliament expressly granted jurisdiction to the Employment Appeal Tribunal to hear appeals &quot;arising in any proceedings before an employment tribunal under or by virtue of ... the <em>Equality Act 2010</em>&quot; (see <a href="https://www.legislation.gov.uk/ukpga/1996/17/section/21" rel="nofollow noreferrer"><em>Employment Tribunals Act 1996</em>, s. 21</a>, as amended). Parliament <em>chose</em> this expert, specialized tribunal to have the jurisdiction to decide how to interpret and apply the <em>Equality Act 2010</em>. Courts are loathe to interfere with an interpretation or decision made by an administrative tribunal, as this would upset the choice made by Parliament to let the administrative body make the decision. They are, however, reviewable for errors of law (<em>Anisminic Ltd. v. Foreign Compensation Commission</em>, <a href="https://www.bailii.org/uk/cases/UKHL/1968/6.html" rel="nofollow noreferrer">[1969] 2 AC 147</a>). In the case of the Employment Appeals Tribunal, Parliament has even provided an express path for appeal to the Court of Appeal. This is an area of law where Parliament has dictated which administrative bod(ies) should make the initial determinations regarding the interpretation and application of the <em>Equality Act 2010</em> and provided a precise mechanism for challenging those decisions.</p>
<p>I've focused on the administrative nature of Employment Tribunals and the Employment Appeal Tribunal, but if this question were to come directly before the judiciary, the issue would still be that Parliament has provided protection for &quot;any religious or philosophical belief.&quot; When a claim of discrimination based on a philisophical belief comes before these tribunals or ultimately the Court of Appeal, they will <em>have</em> to somehow decide whether the complainant's belief is a <em>philosophical belief</em> warranting protection under the <em>Equality Act 2010</em>.</p>
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<p><sup>1. While <em>stare decisis</em> is a factor, tribunals are not bound by <em>stare decisis</em> towards their own previous decisions in the same way as courts tend to be. Also, most entities that respect <em>stare decisis</em> have a principled way of reconsidering their previous positions on questions of law (when not constrained by precedent from higher courts). That is, an institution's conception of <em>stare decisis</em> has built in a theory about when it is okay to depart.</sup></p>
