Employee's opposition to critical race theory was a protected belief
An employment tribunal has found in Corby v Advisory, Conciliation and Arbitration Service that a claimant's opposition to critical race theory was a protected belief under the Equality Act 2010 (EqA 2010).
The core idea of critical race theory is that racism is embedded in society, that it is not only the product of individual bias and prejudice, but is entrenched in legal systems and policies.
Mr Corby is a conciliator at Acas who describes himself as white. However, throughout his life, he has spent large amounts of time with black people and formed close relationships with them. His wife is black and he describes his children as black. In August 2021, Mr Corby posted on a private workplace communications platform, Yammer, that critical race theory is divisive because it portrays white people as racist. Some of his colleagues complained to managers that his comments demonstrated "a deep-rooted hatred towards black and minority ethnic people who challenge racism, organise in black structures and safe spaces and mobilise against racism" and were "promoting racist ideas". Managers dismissed the complaints but instructed Mr Corby to remove the posts, which also criticised the Black Lives Matter movement, as some employees had found them offensive. Mr Corby brought a tribunal claim arguing that he had been unlawfully discriminated against and that his views were protected under the EqA 2010.
He explained his belief as a challenge to critical theory and identity politics in general. He said that he believes that a "woke" or "critical theory" approach to racism is misconceived and that belief in structural racism is divisive because it sees white people as a problem. He believes that the better approach is that of Martin Luther King, which desires a society where people are judged by their character rather than the colour of their skin and emphasises what people of all races have in common.
For a belief to qualify for protection it has to fulfil the five criteria set out in Grainger plc and others v Nicholson. These are that it has to be genuinely held; be a belief and not an opinion or viewpoint; be a belief as to a weighty and substantial aspect of human life and behaviour, and attain a certain level of cogency, seriousness, cohesion and importance. Finally it has to be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
The tribunal considered the Grainger guidelines and found that Mr Corby's beliefs on race were genuinely held, carefully considered and affected the way he lived his life such that they were more than merely opinions. It also found that they related to a substantial aspect of human life or behaviour. His beliefs were consistent, logical and structured and were therefore cogent and coherent. Finally his beliefs related to the best way of eliminating racism in society and were clearly worthy of respect.
Following the tribunal's decision, the case will now continue to a substantive hearing to consider whether Mr Corby was unlawfully discriminated against under the EqA.
Take note: The decision in Corby reinforces that it is possible for beliefs which may be offensive, shocking or disturbing to others to be protected. This is in line with the Employment Appeal Tribunal's decision in Forstater v CGD Europe and others where it was held that it was only extreme beliefs, such as pursuing totalitarianism, advocating Nazism, or espousing violence and hatred, which would fail to satisfy the Grainger criteria and so be found not to be worthy of respect in a democratic society.