From Ought to Is: Garrett and the Limits of Manifestation

In Book III of A Treatise of Human Nature, Hume notices something about the moral philosophers he has been reading. They proceed for a while in the ordinary way, establishing what is and is not the case, and then, imperceptibly, the propositions start to be about what ought and ought not to be. The substitution is never announced and never defended. Hume asks only that authors show their working, since the new relation cannot simply be deduced from the old.

An Employment Tribunal in London ran that inference in reverse. It began with what ought to be — that all people should be treated the same whatever their colour — and derived from it a proposition about what is, namely that systemic racism does not exist in British society. Hume was troubled by the more tempting of the two directions. The tribunal took the one that is harder to defend.

London Ambulance Service NHS Trust v Garrett [2026] EAT 77, handed down by HHJ Auerbach on 29 May 2026, holds that the inference does not run. A belief about what is cannot be a manifestation of a belief about what ought to be. The judgment gives respondents a discrete line of attack that bites before proportionality under Higgs v Farmor's School [2025] EWCA Civ 109 is ever reached. It also shows, more quietly, how a discrimination claim can be decided by the words written down at a case management hearing eighteen months before anyone gives evidence.

Two incidents

Ricky Garrett, who identifies as white British, worked on the emergency ambulance crew. In January 2020 he was crewed with a black colleague who had gone into a shop to buy snacks when an emergency call came in, delaying their response. The two argued. Garrett used the word "roadman" about him.

On 7 June 2020, in the aftermath of the killing of George Floyd, Garrett was in the mess room discussing Black Lives Matter with a colleague. He said he did not accept the concept of systemic racism. A third member of staff overheard the exchange, was not party to it, and complained that day. She attributed further remarks to him about incarceration rates and about black people not hiding behind their race, all of which he denied.

The Trust suspended Garrett and appointed an investigator, who assumed the term "roadman" was a racial slur because a diversity consultant had told him so, and who closed his investigation without interviewing the one person who had actually been in the June conversation. That interview happened only after the disciplinary hearing was adjourned so it could take place. The Trust found the "roadman" comment abusive but not racial, upheld the other allegations, and issued a final written warning, reduced on appeal to eighteen months. It also required Garrett to complete unconscious bias training, a black allyship workshop, and a written reflective practice on acceptable workplace language and systemic racism. He refused all three. He was not dismissed.

An Employment Tribunal, by a majority, upheld three complaints of direct belief discrimination and one overlapping complaint of direct race discrimination, awarding £3,750 for injury to feelings.

The belief that was pleaded

Garrett's ET1 put his belief in descriptive terms: he did not believe systemic racism existed, and thought social, financial and cultural factors played a bigger role in outcomes than colour. That is a claim about how the world is.

At a case management preliminary hearing in March 2023 the belief he relied on, in counsel's word, crystallised into something else: that all people should be treated with the same respect regardless of colour or culture, and that we are all one race. That is a claim about how people ought to be treated. The Trust conceded that this belief was protected under section 10 of the Equality Act 2010. Neither party challenged the tribunal's descriptions of either belief before the EAT ([52]).

The Trust risked nothing by conceding the point. A normative belief in equal treatment is easy to concede as protected where the treatment complained of was prompted by a descriptive belief about society. The concession removed any argument under Grainger plc v Nicholson [2010] ICR 360, and left as the protected belief a proposition that could not have caused the treatment. Garrett appeared in person before the tribunal and again before the EAT, against counsel on both occasions.

Normative and descriptive

HHJ Auerbach separated the two. The treatment belief "is, on its face, a belief about what should happen, namely that all people should be treated the same regardless of their colour or culture. It is, as Mr Harris put it, a normative belief – a belief about how things ought to be" ([53]). The rejection of systemic racism, by contrast, "is, on its face, a belief, not about what ought to be, but about what is" ([55]). The distinction that decided the appeal came from the respondent's skeleton argument, which the judgment records twice.

The tribunal majority had bridged the two. Garrett's rejection of systemic racism was "wholly consistent" with his belief in equal treatment, there was "an undeniable link between the two", and it "flows logically" from a belief in equal treatment that a person holding it would reject a theory attributing specific characteristics to people solely because of their race.

That last clause was the error. The majority's description of systemic racism theory did not match the definition the tribunal had itself adopted earlier in its reasons — a theory about privilege and disadvantage distributed across a society, not one attributing characteristics to individuals by race. Having mischaracterised the theory, the majority found it repugnant to the treatment belief and inferred a link. HHJ Auerbach thought the mischaracterisation was probably what produced the finding of an undeniable link ([56]).

The refutation is a single counterexample, taken from the grounds of appeal: "A person who holds the same belief relied upon by the Claimant could equally be of the opinion that systemic racism does exist." Believing that people ought to be treated equally tells you nothing about whether they are. The two propositions are not merely separable; they are about different things. There was accordingly no sufficiently close and direct nexus, and nothing "intimately linked" in the sense required by Eweida and others v United Kingdom [2013] ECHR 37. The only conclusion open to the tribunal was that the descriptive belief was not a manifestation of the normative one ([57]).

The causation grounds

The manifestation point disposed of the belief complaints, but the causation reasoning failed independently. On the unfinished investigation, the majority never asked whether the investigator would have done the same had Garrett said something else the investigator thought racially charged but which manifested no protected belief. Without that comparison there was no basis for a finding about the reason for the treatment. On the written reflective practice, the tribunal had found in terms that the misconduct was the offensive manner in which Garrett behaved towards colleagues rather than his denial of systemic racism: the majority did not engage with its own finding.

The race complaint went the same way. A tribunal must identify specific facts capable of supporting an inference that the protected characteristic materially influenced the treatment, or of shifting the burden ([81]). Management's statement that it wished to listen to BME colleagues after George Floyd's death could not support an inference that a particular decision-maker discounted particular evidence because of Garrett's race ([83]). The finding was perverse ([84]). Practitioners who have read Clifton Diocese v Janet Parker [2026] EAT 68 will recognise the shape of the error: inference drawn from atmosphere rather than from facts tied to the person who did the act.

Applying Jafri v Lincoln College [2014] EWCA Civ 449, HHJ Auerbach substituted dismissal of all four complaints rather than remitting, and quashed the award.

A postscript on majority decisions

The tribunal's written reasons did not set out the minority's reasoning, and did not identify which of the three members formed the majority. Neither failing was a ground of appeal. Both were criticised, with reference to Morgan v Welsh Rugby Union [2011] IRLR 376. A party reading a split decision is entitled to know who disagreed and why.

What to take from it

Plead the belief that actually caused the treatment. If the reason for the detriment was a proposition about how the world is, that proposition has to be the protected belief; the Grainger argument has to be fought rather than avoided. On the tribunal's own findings Garrett would have had a decent prospect of winning it: his view was not susceptible to being changed by evidence about society at large, which meets the second criterion, and the bar for excluding a belief as unworthy of respect in a democratic society is high.

Classifying the belief is therefore the first task, and it is done on the words the tribunal uses to describe it rather than on the label the parties attach.

Examine a respondent's concession on section 10 before accepting it. A concession that a broadly worded belief is protected can be a concession that costs nothing and forecloses the argument that matters.

For respondents, the normative/descriptive question is now worth asking at the outset of any manifestation case. It operates earlier than Higgs proportionality and, where it succeeds, it removes the claim rather than calibrating the response. Omooba v Michael Garrett Associates Ltd (t/a Global Artists) [2026] EWCA Civ 253 did comparable work from the other end of the analysis, disposing of the claim on the reason why the contracts were terminated. Between them the two cases are a reminder that a belief claim can fail twice over before any balancing exercise begins.

There is an open question the case did not need to answer. Nobody has yet decided at appellate level whether protection for a lack of belief requires the corresponding positive belief to satisfy Grainger. It made no difference here, since a positive belief in the existence of systemic racism would plainly qualify.

The dichotomy is cleaner in this case than in general

Hilary Putnam spent the last part of his career arguing that the fact/value dichotomy collapses under examination, because thick ethical concepts describe and evaluate in the same breath. "Cruel" reports something about conduct and condemns it at once. Much of the vocabulary of equality law behaves the same way.

HHJ Auerbach saw the difficulty. At [54] he accepted that the formulation "we are all one race" might, in some contexts, be a play on the two senses of the word whose real point is a descriptive proposition about whether racial difference carries social significance. He held it was not that here only because the tribunal, referring to Martin Luther King, had plainly read it as a purely normative claim about common humanity. The dichotomy did the work in Garrett because the tribunal's own description of the belief made the two propositions separable.

Beliefs about equality do not always sort that neatly, and a claimant whose belief is drafted to sit astride the line will present a harder case than this one. Corby v Advisory, Conciliation and Arbitration Service, in which a Leeds tribunal found opposition to critical race theory to be a protected belief, is expected in the EAT this year. It will be a better test of how far the distinction reaches.

Table of Authorities

Further Reading

1. David Hume, A Treatise of Human Nature (1739–40), Book III, Part I, Section I. The is/ought passage runs to a single paragraph at the close of the section. Worth reading for what Hume actually says, which is narrower than the slogan it became: not that the inference is impossible, but that it is never explained, and that authors owe a reason.
2. Hilary Putnam, The Collapse of the Fact/Value Dichotomy and Other Essays (Harvard University Press, 2002). The argument that thick ethical concepts describe and evaluate at once, and that the two cannot be prised apart as cleanly as the dichotomy assumes. The strongest case against the distinction Garrett turns on.
3. ‘Denial of systemic racism was not manifestation of belief in equality’, IDS Employment Law Brief 1194 (July/August 2026) 9. The case report, with a comment raising the unresolved question whether protection for a lack of belief requires the corresponding positive belief to satisfy Grainger.