In Thomas v Surrey and Borders Partnership, the EAT held that a belief in English nationalism which included anti-Islamic beliefs was not a protected philosophical belief under the Equality Act 2010.

Mr Thomas was engaged by Surrey and Borders Partnership NHS Foundation Trust on a three month consultancy contract. Shortly before this contract expired, he was dismissed for failure to disclose an unspent conviction for electoral fraud. Mr Thomas then brought a claim of discrimination in the Employment Tribunal alleging that the real reason for his dismissal was his philosophical belief in English nationalism. A preliminary hearing was held to determine whether this could constitute a protected belief.

For a philosophical belief to be protected, it must satisfy the criteria set out in the 2010 case of Grainger Plc v Nicholson:
<ul>
 	<li>• It must be genuinely held;
• It must concern a substantial aspect of human life;
• It must have a sufficient level of cogency, seriousness, cohesion and importance;
• It must not be incompatible with human dignity or conflict with the fundamental rights of others; and
• It must be worthy of respect in a democratic society.</li>
</ul>
The Tribunal held that Mr Thomas’ belief in English nationalism, which was focused on national culture and identity rather than common descent or race, satisfied the Grainger criteria and could in principle be a protected belief. However, as part of his belief in English nationalism, Mr Thomas also held anti-Islamic beliefs which had been expressed publicly on social media and in a previous Tribunal case. This included advocating removal of Muslims from the UK and banning Islam unless it was 'anglicised' and 'toned down'. The Tribunal found that this 'disdainful and prejudiced focus on Islam' amounted to a 'generalised form of harassment targeting one particular religion.' This contradicted the final two Grainger criteria and prevented Mr Thomas’ belief in English nationalism from being protected under the Equality Act.

Mr Thomas appealed to the EAT, arguing that his belief easily satisfied the Grainger criteria and did not come close to being the type of belief that should be excluded from protection. The EAT acknowledged that the threshold for protection under the Equality Act is low. As established in the 2021 case of Forstater v CGD Europe, a philosophical belief will only be considered unworthy of respect in a democratic society if it is an extreme belief akin to Nazism or totalitarianism, or a belief which incites hatred or violence in the gravest of forms. Minority beliefs which are offensive, shocking or disturbing to others may therefore still be protected. In this case, however, the EAT agreed that Mr Thomas’ anti-Islam beliefs did not pass even this low threshold as they amounted to a grave form of hate speech.

The EAT highlighted that there is some conflict in European case law about the appropriate threshold for excluding philosophical beliefs on grounds of being unworthy of respect in a democratic society. This may mean that Forstater is too narrow, and that beliefs advocating intolerance and discrimination also fall outside the Grainger criteria, not just those espousing violence and hatred in its gravest forms. Dealing with conflicting rights and freedoms can be a very difficult issue for employers, and further case law to clarify the boundaries of protected beliefs would be welcome.