05 November 2009

Nicholson vs Grainger plc, An Interpretation by Mike Hulme

A guest post by Mike Hulme (m.hulme@uea.ac.uk; www.mikehulme.org)

A recent case brought before a UK Employment Appeal Tribunal raises some interesting questions about what constitutes belief in anthropogenic climate change and the (claimed) moral imperative to live a low-carbon lifestyle and persuade others to do the same. Under UK employment law, the judge has ruled that the plaintiff – Tim Nicholson – is entitled to bring a claim of unfair dismissal (claimed to be because of his belief in anthropogenic climate change) against his former employers – Grainger plc – on the grounds that his belief amounted to ‘a philosophical belief similar in cogency and status to a religious belief’.

Let me summarise the case and the arguments first, before reflecting on what the case signifies for the relationship between science, belief and personal behaviour with regard to climate change.

The Case

Tim Nicholson (aged 42 and ex-head of sustainability at Grainger plc, the UK’s largest listed residential landlord with assets of £2.3bn with a further £3bn under management) is claiming he was unfairly dismissed from his job in July 2008 because of his beliefs about climate change. He has brought his case under the UK Employment Equality (Religion and Belief) Regulations 2003. These regulations enlarge the notion of religious belief to include other ‘philosophical’ beliefs which are ‘similar’ to those of religion. According to the regulations, a qualifying belief must ‘have sufficient cogency, seriousness, cohesion and importance and be worthy of respect in a democratic society’. Nicholson is claiming that his belief in anthropogenic climate change and the moral imperative to adjust his lifestyle accordingly is exactly this - ‘I believe we must urgently cut carbon emissions to avoid catastrophic climate change’ – a philosophical belief.

Grainger plc defended the case on the grounds that Nicholson’s beliefs are in fact ‘rooted in a scientific view of climate change rather than in a philosophical one’. Grainger claimed that ‘philosophy deals with matters that are not capable of scientific proof’.

It is important to be clear about what has thus far been at stake with the legal hearings. It is not whether Nicholson was unfairly dismissed from his job in July 2008. The Tribunal has not yet reached this stage and may or may not eventually find in his favour. What has been at stake thus far is whether or not Nicholson is entitled to bring the case of unfair dismissal to the Tribunal on the specific grounds that he holds a philosophical belief in climate change. If it is ruled that he is so entitled on these specific grounds, then the law protects him from being discriminated against - just as would the law protect someone from being dismissed for holding Jewish or any other religious, or indeed atheistic, beliefs.

The preliminary hearing at a regional tribunal in March 2009 gave Nicholson permission to bring the case to the London Central Employment Tribunal in October. This he duly did and the judge of this full Tribunal, Justice Sir Michael Burton (who incidentally was the same judge who ruled about the ‘nine scientific errors’ in Al Gore’s movie An Inconvenient Truth), delivered his verdict on 3 November 2009.

Judge Burton’s ruling was that there is sufficient evidence that Nicholson’s ‘asserted’ belief in anthropogenic climate change is ‘capable’ of being regarded as a legitimate philosophical belief and that therefore Nicholson is entitled to bring the case of unfair dismissal against Grainger plc on these specific grounds. Note that the judge recognises that cross-examination of Nicholson will be necessary in the subsequent dismissal hearing to establish the genuineness of his belief. Also note that Burton is not ruling that Nicholson was in fact discriminated against by Grainger plc. That was not the purview of the hearing held in October and the final verdict on the unfair dismissal claim is still to be established and delivered.

But the importance of this initial judgement is that under UK employment law it has now been ruled that in principle a belief in anthropogenic climate change, and the consequent demands such a belief might place on personal lifestyle choices and on the need to proselytise others, can constitute a philosophical belief.

The Arguments

In passing his judgement, Judge Burton evaluated the arguments brought by Nicholson and by Grainger plc. Nicholson summarised his philosophy as follows:
“Mankind is heading towards catastrophic climate change and therefore we are all under a moral duty to lead our lives in a manner which mitigates or avoids this catastrophe for the benefit of future generations and to persuade others to do the same”.
Grainger plc brought forward three arguments as to why this belief should not be seen as constituting a philosophy similar to a religion. Judge Burton rejected all three. First, Burton said that it was not necessary for Nicholson’s belief about climate change to be part of a larger system of beliefs; pacifism or vegetarianism as ‘one-off beliefs’, he said, could also qualify under the terms of the Regulations. Second, Burton said that, contrary to Grainger’s claim, even if Nicholson’s belief could be shown to derive from a set of cogent political beliefs, it could still quality as a philosophy under the terms of the Regulations. And, third, Burton said that, contrary to Grainger’s claim, even if Nicholson’s belief could be shown to be based on scientific (as opposed to ethical or metaphysical) evidence, it could still qualify as a philosophy under the terms of the Regulations. The example he gave here was that Darwinism could also qualify as ‘a philosophical belief’ even if it were based entirely on scientific considerations.

The Implications

The implications of the ruling seem to me to be both more and less significant than is being claimed by environmental advocates in the UK – for example see ‘Green beliefs win legal protection’.

The ruling is perhaps more significant than is claimed because it potentially includes a huge range of personal beliefs under the terms of UK employment regulations on unfair dismissal. Veganism, pacifism, socialism could all qualify as philosophical beliefs under the terms of the Regulations, as implied by Judge Burton. But it also opens the way for employees with other subjectively held deep beliefs such as astrology, flat-earthism or even a disbelief in HIV-AIDS to bring cases of unfair dismissal on the grounds of their ‘philosophical beliefs’.

But the ruling is at the same time perhaps less significant that some of the claims made of it. I suggest this for two reasons. First, it places a great onus on the claimant being able to demonstrate successfully coherence between their intellectual belief about anthropogenic climate change and its consequences on the one hand, and their personal lifestyles on the other. When he is cross-examined at the subsequent full dismissal hearing, Nicholson will have to be able to show and defend how his belief is driving his behaviour across a wide variety of lifestyle choices. Is he in fact a credible believer. Whether or not Nicholson is able to demonstrate this, there may be many others in his intellectual position whose professed beliefs are not matched by their actions. And they, of course, will not be the first who have had shown up in public – sometimes quite distressingly - the value-action gap that most (all?) humans are subject to. Believing that one has a moral duty to do something does not always easily lead to the implied behaviour!

The second reason it is perhaps less significant than has been claimed is that the ruling in fact leaves entirely open the question about the lines of evidence and reasoning that contribute to Nicholson’s philosophical belief. Judge Burton explicitly allows such belief to be derived entirely from scientific evidence (as in the Darwinism example), but also for belief to be derived from purely ethical judgements, religious considerations, political ideologies, etc. He therefore adopts a very catholic view of how people reach personal beliefs which matter to them and which, they claim, drive their personal behaviour. Tim Nicholson might possibly have reached his philosophical belief on climate change and his evangelical zeal by reading all the reports of the IPCC, but it seems rather unlikely.

In this sense, therefore, Judge Burton’s ruling is both instructive and wise – and maybe not as radical as some would like to claim it to be. It is instructive because it recognises that human beliefs and lifestyle decisions are formed through a complex interplay of cultural, psychological and scientific factors and considerations. It is wise because it places the label ‘philosophical’ on such beliefs about climate change – rather than merely the labels ‘political’, ‘religious’ or ‘scientific’ beliefs. Such philosophising is in fact what we all have to do with the issue of climate change. Each of us has to construct our own philosophical position on climate change, drawing upon many lines of evidence and reasoning that should include, but should also extend well beyond, the science assessed by the IPCC.

And of course in weaving together our own climate change philosophies we will not always come up with the same formula as the one Tim Nicholson has constructed. His beliefs about climate change should not indeed be the basis of his dismissal by his employer, any more should yours or mine if we read, weigh and interpret the evidence about climate change – its causes, consequences and its ethical demands – either similarly or differently from Nicholson. We must all be willing to disagree about climate change; and respect each other for it.

Mike Hulme, 5 November 2009

Read ‘Why We Disagree About Climate Change’ (CUP, 2009) for a full length investigation of the issues raised by this judgement.

10 comments:

  1. I do not know the basis for Nicholson's dismissal. Burton's ruling does not seem particularly radical since it amounts to the statement that you cannot simply fire someone for what they believe so long as that belief does not limit their ability to do the work they originally agreed to do. For example, if X is hired as a butcher and then decides that the handling of certain meats is against his belief system - then clearly X should find another line of work or a different type of butcher shop.
    What this ruling does IMHO is that it changes how much effort an employer needs to make in order to accomodate the beliefs of an employee. It also makes it harder to determine when some shortfall in job performance is due to a lack of effort, willingness or skill as opposed to behaviors stemming from a belief system.
    As an employer, I would like the presumption to be that any shortfall in job performance is a sufficient basis for termination. For example, if Nicholson repeatedly extended or disrupted business meetings by being over zealous in arguing sustainability issues the judge's ruling now vastly complicates the dismissal decision.
    It would be interesting to learn how much Judge Burton considered the general needs of employers to make personnel decisions and run a business in making his ruling - though his discretion here is probably constrained by the original Act. On a separate issue - trying to determine the authenticity with which an employee held a set of beliefs strikes me as a tricky proposition.

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  2. I think it would be marvelous to debate and disagree with mutual respect but there is a theological impediment. Most religions point to an afterlife preceded by a judgment or other disposition of an *individual* soul. In Mr. Nicholson's religion, salvation depends on virtually all sinners being made to conform to its moral precepts. There is not even an equivalent dhimmi status for non-believers.

    We debate the "climate change" the way Al Gore, Joe Romm and Mr. Nicholson have framed it so vigorously precisely because there is an absolutism at its core. There is no forgiveness for those who know not what they do because there is a gnostic component--claiming to know (rather than believe) the predictive models are right is the first step to salvation. Failure to possess that knowledge is itself a guarantee of damnation.

    The absolutist religious dimension is especially evident when the sinner is meticulously empirical and well-reasoned. How else does one explain the vituperation directed at Bjorn Lomborg? or Pielke Sr & Jr?

    I would like to think that great philosophical questions underpin the debate but I fear that it may just be visceral reactions to Boomer/GenX narcissism hardening into a pseudo-theology based entirely on lifestyle and consumer preferences.

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  3. I'm with Bernie in considering the practical side of this.

    It's hard to imagine that someone was dismissed for their beliefs, unless that person stated them out loud. Otherwise, how would you know? It's not as if there's a Climate Change Religious Holiday (perhaps Earth Day) that they would ask to take off?

    Perhaps this individual annoyed other people with his beliefs (like selling Amway at work) or refused to go along with decisions made by leaders.

    I've always counseled folks in the climate change/sustainability world to try to balance their exhortations to others with the words attributed (perhaps incorrectly) to St. Francis "preach the Gospel, if necessary use words."

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  4. Myles Allen doesn't like the decision:

    http://www.guardian.co.uk/commentisfree/cif-green/2009/nov/05/climate-change-ruling-beyond-belief-religion

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  5. Myles Allen doesn't understand UK law. At no point does the judgement state that a belief in climate change is a religion. It is a philosophical belief akin to belonging to a political party.

    The issue that the employment tribunal will have to consider is whether that 'philosophical belief' played a part in his dismissal. This judgement merely allows him to make the argument, not whether it is valid in this particular case.

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  6. Mike Hulme: An admirably clear explanation of the ruling and its implications. One point not covered, though, is that the 2003 regulations offer protection against a lot more than unfair dismissal. You can, for example, take employers (and prospective employers, former employers, employment agencies, trade unions, teachers and others) to court if you think they did something that violated your dignity - or, in plain English, hurt your feelings. You don't have to prove intent. All you have to do is show that your beliefs are sincere, that the employer's action was in some way a response to those beliefs and that, given your beliefs, it is not unreasonable for you to think that your dignity was violated.

    bernie: 'I would like the presumption to be that any shortfall in job performance is a sufficient basis for termination.' It's not just sufficient, it's the only one there is (if you include dishonesty, theft, awkwardness and disruptive behaviour in 'job performance'), and I'm not sure that the 2003 regulations changed this. Being sacked for your beliefs was already covered by existing employment legislation, which essentially said that you could only be sacked if there was something wrong with your work or there wasn't any work for you to do. It didn't matter whether you were a devout Muslim, a committed environmentalist or someone who had never felt strongly about anything at all; employers couldn't sack you because of something you did or didn't believe, because that had nothing to do with your competence. So the 'unfair dismissal' parts of the 2003 regulations were unnecessary. And the 'violated dignity' parts were just daft.

    Oddly (or daftly), I probably wouldn't have said they were daft if I thought they applied only to people with strongly held religious beliefs. That's probably because bashing strange religions is taboo in multicultural Britain. But 'multicultural' doesn't really mean multicultural and the taboo doesn't extend to vegans, Mystic Megs and climate catastrophists. That the ruling has placed their dignity under legal protection brings the matter of special protection for special groups into sharper focus and makes the protection given to religious beliefs look almost equally unjustified.

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  7. Even if the judgment doesn't say that belief in climate change is a religion, the important thing is how the people understand it. I understand why climate scientist won't like the main perception that people will get from it.

    Mike Hulme makes a good summarization of the situation. Mr Nicholson is better be holier than thee when he will be cross-examine. I just hope for him that he is nothing like Al Gore which is do as I say and not as I do with him. In the case of Nicholson he better not have a spa, heated pool, suv (or even a car), or anything that would increase his footprint greater than he can justify.

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  8. Excellent article Mike. I read and heard many interviews when you were promoting the book too. I think I get the message and am glad to see you here in a conducive space like this.

    'Tim Nicholson might possibly have reached his philosophical belief on climate change and his evangelical zeal by reading all the reports of The IPCC, but it seems rather unlikely.'

    I would guess he may have got it from the daily deluge of corporate propaganda in the Guardian. The Guardian has virtually created a whole new industry.


    http://www.guardian.co.uk/environment

    It must cost a lot of money to keep this up and the Guardian doesn't have any. There are ten to fifteen articles a day.

    Advertising comes from a variety of sources but by far the most prominent recent one has been Shell Oil. Today one of them is E.On, a provider of coal powered electricity who are going to build Kingsnorth, the coal fired station James Hansen got involved in complaining about.

    Hypocrisy is not an issue.

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  9. Lacan's Cat

    The complication is in the meaning of "played a part in his dismissal." It is difficult when someone repeatedly disrupts meetings by pushing a particular point of view to separate out their disruption from their point of view or philosophy. Without knowing the actual behaviors that led to the dismissal it is difficult to make that determination. Clearly, if Graingers simply fired the person for their beliefs and the individual had acceptable job performance then it seems that the Judge's ruling is non-problematic. I suspect that the hidden issue is around how the beliefs became a relevant consideration and how one might reasonably accommodate such philosophical beliefs.

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  10. Vinny:
    I agree with your position. What I was trying to say is that even if I found a belief system intolerable and said as much, that should be an irrelevant consideration if your work was not acceptable.
    Can someone point me to the facts of this case and what led to Nicholson's firing? Otherwise I get this feeling of being involved in a theological/ethical debate with no concrete data.

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