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The second criterion of the Grainger Test when ascertaining if a belief is protected under the Equality act is:

The belief must not simply be an opinion or viewpoint based on the present state of information available

I don't quite understand this. Can someone explain, ideally with an example that fails this but passes the other criteria?

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This criterion is presented in Grainger Plc & Ors v. Nicholson (2009), [2010] IRLR 4 (EAT) at paragraph 24 (emphasis mine):

(ii) It must be a belief and not, as in McClintock, an opinion or viewpoint based on the present state of information available.

This criterion draws from McClintock v Department of Constitutional Affairs, [2007] UKEAT 0223/07. There the tribunal explained (at para. 45):

it is not enough "to have an opinion based on some real or perceived logic or based on information or lack of information available." Mr McClintock had not as a matter of principle rejected the possibility that single sex parents could ever be in a child's best interests; he felt that the evidence to support this view was unconvincing but did not discount the possibility that further research might reconcile the conflict which he perceived to exist.

In McClintock,

The appellant [McClintock] was a Justice of the Peace. He sat on the Family Panel which, inter alia, places children for adoption. He objected to the possibility that he might be required to place a child with a same sex couple. The reason he gave was that he considered that there was insufficient evidence that this was in the child's best interests and he felt that children should not be treated like guinea pigs in the name of politically correct legislation.

In that case, the first-level tribunal and the appeal tribunal both agreed that this objection was not rooted in any religious or philisophical belief; it was based instead on (in McClintock's view) insufficient or equivocal evidence about the harm that might come to children when placed with same sex parents.

This criterion is just one of the several filters that the tribunal will use to determine whether a belief is a philisophical belief within the protection of the Equality Act 2010. If the person is open to "the possibility that further research might reconcile the conflict" (McClintock, para. 45), this means it is not a philisophical belief, but simply a disagreement about the state of evidence.

The five Grainger criteria were drawn from several sources, including cases interpreting international law and Canadian jurisprudence. I do not read the criteria to be silos of analysis. Some criteria seem correlated with others. I would not be surprised if there are no examples where a belief fails on solely a single ground and where the court announces that the belief would have succeeded on the other grounds. This is especially because where a belief fails on one ground, there is no need to continue the analysis of the other grounds.

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  • The test seems designed to distinguish between permanent, deeply held beliefs held out of moral principle (e.g. veganism out of respect for animals) and potentially temporary, less deeply held beliefs that are just based on an appraisal of the facts (e.g. veganism based on research that meat gives you cancer). Why it feels the need to differentiate the two types of belief is another question. It runs counter to the common idea that beliefs based on evidence deserve more respect than beliefs based on prejudice or intuition, but that's the law.
    – Stuart F
    Commented Sep 7, 2023 at 13:41

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