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 "worthy of respect" within a "democratic" 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 "worthy of respect."

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.

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.

What would be needed to mount such challenges to the Grainger test and challenge the validity of this apparent power grab by the judiciary?

2 Answers 2


The judiciary is an arm of the state

There is no “power grab” by the judiciary: they are simply exercising the Constitutional power they have to act as a court of record (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 make decisions. You seem to think this isn’t their job but it is precisely their job.

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 is an appeals system - one judge has made a decision, 3 or more others review it.

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.

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.

  • It is a decision which expands the scope of their decisions in a way that one would not have previously imagined as their role. Commented Oct 15, 2022 at 9:05
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    @JosephCorrectEnglishPronouns Not really. Parliament presented them with the concept of a belief, with very little elaboration on what that means. Parliament, having been democratically elected on the basis that it can pass whatever laws it likes, made a conscious decision not to be too specific in order to allow the judiciary the freedom of a wide interpretation. Consider that the judiciary often has to decide things which may appear subjective (e.g. fairness in consumer law, the "reasonable" test, etc.).
    – JBentley
    Commented Oct 15, 2022 at 10:26
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    @JosephCorrectEnglishPronouns If Parliament hadn't wanted the judiciary to have what you call a "power grab", then it could have very easily been as specific as it wanted to in defining belief. Indeed, Parliament conducts this balance (judicial flexibility vs restriction) every time it drafts a bill, and it very often errs on the side of flexibility. That is very much a deliberate choice to leave the details to the judiciary, and it is a choice made via a democratic process.
    – JBentley
    Commented Oct 15, 2022 at 10:30
  • From whence does this idea originate that where parliament is a bit vague or shy in details it is for the intention of giving the judiciary wider room for discretion on the matter? Commented Oct 15, 2022 at 11:28
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    "From whence does this idea originate...": common law - i.e. judge-made law - is older than statute law. In other words, judges deciding what the law is came before Parliament existed to make laws. The scope of what judges can decide has diminished (e.g. common law offences - e.g. murder - don't get created any more), but the idea of judges "filling in the gaps" left to them by Parliament predates the creation of Parliament itself. Commented Oct 15, 2022 at 15:20

The "Grainger" test is an interpretation of "philosophical belief" under the Employment Equality (Religion or Belief) Regulations 2003 (repealed, but the relevant portions of which are now included in the Equality Act 2010; it says, "Belief means any religious or philosophical belief").

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.

Legislative reform

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.


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 an application of the Grainger test 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 "philosophical belief" is the wrong test.

Convince the tribunal the Grainger test is the wrong test

The Employment Appeal Tribunal is free to update the approach to the term "philosophical belief." If the current approach is unworkable in some way, one might convince the tribunal it needs to update the test.1

This was a power grant not a power grab

I now am moving beyond the literal scope of your question to address what I see as unstated premises behind your question.

The Employment Appeal Tribunal is a tribunal, not a court. While it is a part of a unified judicial system, and its members are guaranteed judicial independence, it is part of the administrative state. Parliament expressly granted jurisdiction to the Employment Appeal Tribunal to hear appeals "arising in any proceedings before an employment tribunal under or by virtue of ... the Equality Act 2010" (see Employment Tribunals Act 1996, s. 21, as amended). Parliament chose this expert, specialized tribunal to have the jurisdiction to decide how to interpret and apply the Equality Act 2010. 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 (Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 AC 147). 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 Equality Act 2010 and provided a precise mechanism for challenging those decisions.

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 "any religious or philosophical belief." When a claim of discrimination based on a philisophical belief comes before these tribunals or ultimately the Court of Appeal, they will have to somehow decide whether the complainant's belief is a philosophical belief warranting protection under the Equality Act 2010.

1. While stare decisis is a factor, tribunals are not bound by stare decisis towards their own previous decisions in the same way as courts tend to be. Also, most entities that respect stare decisis 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 stare decisis has built in a theory about when it is okay to depart.

  • Does the last option not violate stare decisis? Commented Oct 15, 2022 at 9:08
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    @JosephCorrectEnglishPronouns: A commonly used variant of the last option is to convince the court that the previous decision is limited in scope, that there is a certain separation between existing cases and the specific new case, and that a new decision can make this boundary explicit. This allows a new decision that does not contradict state decisis, because it specifically applies to the new case and not the old cases.
    – MSalters
    Commented Oct 18, 2022 at 6:21
  • Haven't any appeal timeframes long lapsed? Aren't any appeal rights exclusive to the original parties?
    – Greendrake
    Commented Oct 31, 2022 at 2:41

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