Making sense of religion & belief discrimination law
Religion and belief is a difficult area of anti-discrimination law as there may be confusion over exactly what constitutes ‘religion’ and ‘belief’. In brief, religion means any religion, and belief means any religious or philosophical belief. Since April 2007 and the introduction of the Equality Act 2006 this has also included a lack of religion and belief. But it is not as clear cut as it first appears.
Who is covered?
Despite recent case law, it is still not clear whether this definition includes beliefs based on cultural practices and tradition. BERR suggests consideration should be given to a number of factors including whether there is collective worship, a clear belief system or a profound belief system affecting way of life or view of the world.
This definition would therefore cover religions including Druidism and the Church of Scientology. Likewise, Rastafarianism qualifies as a philosophical belief similar to a religious belief as would pacifism, humanism, atheism and agnosticism. Tribunals have so far ruled that national loyalty and political belief, such as British nationalism, Nazism and Fascism, do not amount to a religion or belief.
What behaviour is covered?
The Employment Equality (Religion or Belief) Regulations 2003 mirror existing discrimination legislation in providing for four types of unlawful discrimination: direct, indirect, victimisation and harassment.
The subsequent Equality Act amended the definition of direct discrimination to include “on the grounds of the religion or belief of B or of any person except A (whether or not it is also A’s religion or belief) A treats B less favourably then he treats or would treat other persons”. So discrimination can occur even when it does not relate to the religion or belief of the complainant, for example where it is their association with someone of a particular religion of belief.
It also highlights there is no discrimination where the treatment occurs solely on the grounds of the employer’s religion of belief. For example, if A is a Muslim who refuses to promote B who is a non believer, B could not claim direct discrimination because the employer’s religion cannot be taken into account.
This revised definition seems to exclude discrimination on the grounds of a person’s perceived religion or belief - it only covers “religion or belief of the claimant or any other person” - but this has not yet been tested.
Recent case history: Suitable work attire - Eweida v BA plc (2008)
This year an employee took British Airways to an employment tribunal claiming its policy forbidding visible jewellery - in this case a cross - disadvantaged her as a Christian and meant she was treated less favourably than colleagues allowed to wear Sikh bangles or headscarves.
The direct discrimination claim was dismissed on the basis that the relevant circumstances were not the same and could not be compared as the bangle was a mandatory part of the religion and the headscarf could not be concealed. Wearing a visible cross was not a mandatory requirement of the Christian faith, the tribunal ruled, but a personal decision. The tribunal found she had been treated the same as any non-Christian (or someone with no faith) displaying a cross for non-religious reasons and the same as anyone wearing a concealed religious symbol.
The complainant also claimed indirect discrimination but failed to provide evidence of group disadvantage - other Christians who felt disadvantaged for being unable to openly wear a cross.
This case can be contrasted with that involving Aberdare Girls High School (2008) in which a pupil asserted her right to wear a bangle of religious significance. The court found there was indirect discrimination by not exempting her from the school’s dress codes as she had provided objective evidence that wearing the discreet steel bangle was of ‘exception’ due to its importance as an expression of her race, culture and religion.
Recent case history: Roles and responsibilities - Ladele v LB Islington (2008)
In another and substantial case, this year an Employment Tribunal found Islington Council had subjected a registrar to direct discrimination, indirect discrimination and harassment on the grounds of her religion. The ruling centred on the council’s requirement the complainant participate in civil partnership services, contrary to her orthodox Christian beliefs.
The tribunal found the Council had protected the rights of its gay and lesbian employees, while ignoring the complainant’s rights as an orthodox Christian, and had directly discriminated by treating her less favourably due to her beliefs. In a roll call of direct discrimination failings, it was found to have breached her confidentiality by telling colleagues of proposed action against her, failing to consider her for a new position, labelling her homophobic, unilaterally varying her terms and conditions of employment, failing to apply the Dignity at Work Policy and threatening to terminate her employment.
The complainant also succeeded in a claim for indirect discrimination as the requirement to officiate at civil partnerships put her at a disadvantage due to her belief that marriage was a union between a man and a woman. Although promoting gay rights was said to be a legitimate aim, the tribunal found it was not a proportionate means of achieving that aim. This was based on the council’s failure to take into account the employee’s religious beliefs or to consult with her and the fact there were sufficient staff to carry out services without the complainant’s participation.
The harassment claim succeeded on the grounds that the employer had engaged in unwanted conduct by subjecting the complainant to a disciplinary procedure, breaching its confidentiality policy, alleging sexual orientation discrimination and refusing to take the complainant’s views seriously. It was found that this had the ‘purpose or effect’ of creating an intimidating, hostile, degrading, humiliating or offensive environment in that they disregarded and displayed no respect for the complainant’s genuinely held religious beliefs.
In the light of this case, employers need to remember that when faced with conflicting rights, no set of protected rights can ‘trump’ another. In addition, they must respect the views of all employees and accommodate them to the extent that it is fair and reasonable to do so.
Religion as a general occupational requirement
The 2007 Equality Act allows employers to make religion or belief a general occupational requirement (GOR) where there is a genuine case for it. For example, a religious school can justify requiring its teachers to be a certain religion, but it could not necessarily justify support staff being so as they would not be responsible for spiritual guidance.
In a case this year against the charity Prospects for People with Learning Disabilities, an employment tribunal ruled against a GOR defence. Although the employer had a religious ethos, the tribunal found the organisation’s primary purpose was to provide services to people with learning difficulties. In addition, when the tribunal looked at the nature and context in which the work was carried out, the majority of people supported by the charity were not Christians and a significant number of support workers were not practicing Christians.
Equality Bill
The Government is committed to introducing a single Equality Bill during this Parliament. The piecemeal introduction of discrimination law with nine pieces of legislation and around 100 statutory instruments means there are numerous inconsistencies and the Government’s plans for a single Equality Act are to be applauded.
Of most significance for the public sector are proposals to extend the public sector equality duties to religion and belief, sexual orientation and age. Fortunately for those having to oversee these changes, these new duties will be rolled in with existing equality duties in relation to sex, disability and race to create a single steamlined duty. Making the law easier to understand will increase accessibility as employers and employees will be clearer about their rights and responsibilities.
This article was published in Equality & Diversity Professional, January/February 2009
The information in this article is provided as general guidance only. The law in this area is regularly subject to change, challenge and update. You should always check the up-to-date position and if appropriate seek further specialist advice.
