Beyond belief

The prohibition of discrimination on ground of religion or belief in the Employment Equality (Religion or Belief) Regulations 2003 rests on a very broad definition of the terms. The word 'religion' means any religion, 'belief' means any religious or philosophical belief, and even a lack of religion or belief. The prohibition is also direct and indirect discrimination, as well as harassment and victimisation.

Against this background, it is hardly surprising that the leading cases have focused on what type of beliefs are capable of being protected. Do the regulations cover, for example: scientologists, asatru, freemasons, humanists, and Jedi Knights? The latter category is not necessarily included in jest, as in 2001, following an internet campaign, 273,000 people in the UK Census recorded their religion as being 'Jedi' ('Issues raised at the open meeting on Census content 2007', page 10).

Recurring themes include situations where an employee asserts that his or her belief (or the manifestation of that belief) prevents them from carrying out certain elements of their job; and where the employee considers that provisions of a policy act as a provision, criteria or practice (PCP) which places them at a particular disadvantage. Several of the leading cases show that a belief needs to be demonstrable by evidence, rather than being, for example, a moral objection.

The cross case

Readers will no doubt be familiar with the drawn out litigation between Ms Eweida and BA plc, referred to in the media as the 'cross case', reported at solicitorsjournal.com on 12 February 2010 (Eweida v British Airways Plc [2010] EWCA Civ 80).

The original Employment Tribunal heard evidence from several practicing Christians and Ms Eweida herself. None of whom, including Ms Eweida, gave evidence that they considered the visible display of the cross to be a requirement of their Christian faith. The ET rejected all aspects of Ms Eweida's claim, and held that there was no indirect discrimination because 'there was no evidence in this case that might support any suggestion that the provision created a barrier for Christians and ample evidence to the contrary'.

Ms Eweida's case in the Court of Appeal was limited to one discrete issue: by adopting a staff dress code which forbade the wearing of visible neck adornment (and so prevented Ms Eweida, a Christian, from wearing with her uniform a small, visible cross) had BA indirectly discriminated against her on grounds of religion or belief pursuant to the regulations and, if so, could it be justified?

Ms Eweida argued that the definition of 'persons' in 3(1)(b)(i) of the regulations includes a single solitary individual. If that argument were to succeed it would follow that, even if on the evidence Ms Eweida alone was disadvantaged by the dress code, the test of indirect discrimination would be met.

Sedley LJ disagreed, stating that 'there is... no indication that the directive intended that solitary disadvantage should be sufficient... I see no reason, therefore, to depart from the natural meaning of regulation 3'. Sedley LJ held that Ms Eweida's case would be defeated by BA's case on justification: 'It is not unthinkable that a blanket ban may sometimes be the only fair solution.'

Ms Eweida's barrister argued that clause 19 of the Equality Bill, currently being considered by Parliament (but which only reached the report stage on 3 March 2010) adopted a definition of indirect discrimination similar to her construction of regulation 3(1)(b). Although that argument was not accepted by Sedley LJ, it is possible that the Equality Bill '“ if of course it ever makes its way onto the statute books '“ could modify the current draft definition.

Belief in climate change

In Nicholson v Grainger Plc, Mr Nicholson argued that his dismissal amounted to unlawful discrimination because of his strongly held beliefs about climate change. In his witness statement he said: 'I have a strongly held philosophical belief about climate change and the environment. I believe we must urgently cut carbon emissions to avoid catastrophic climate change.'

At a pre-hearing review in March 2009 (Nicholson v Grainger Plc and others ET 2203367/08), the ET decided that Mr Nicolson's beliefs were covered by the regulations stating that the beliefs gave rise to a moral order similar to those 'derived from the major world religions that eschew certain types of meat, promote sexual abstinence and make a virtue of poverty'.

In the subsequent appeal to the EAT (Solicitors Journal 153/42, 10 November 2009, UKEAT/0219/09/ZT), Mr Justice Burton stated that 'if a person can establish that he holds a philosophical belief which is based on science, as opposed, for example, to religion, then there is no reason to disqualify it from protection by the regulations'. He also set out the following limitations, or criteria, to be implied to the definition of 'philosophical belief ':

'(i) The belief must be genuinely held.

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

(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.

(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.

(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.'

Mr Justice Burton referred to the Hansard debate on the Equality Bill, which discussed philosophical beliefs in the following terms: 'An example of a belief that might meet this description is humanism, and examples of something that might not'¦ would be support of a political party or a belief in the supreme nature of the Jedi Knights.' Did I just hear several of you putting down your light sabres?

When advising clients, remember that Mr Nicholson has not won his case; he has jumped over the necessary procedural hurdles to progress to a full hearing.

The need for a belief

The case of McClintock v Department for Constitutional Affairs, first reported on solicitorsjournal.com on 31 October 2007 (UKEAT/0223/07/CEA), concerned a married Justice of the Peace who is a practising Christian and sat on a panel which places children for adoption. He objected to the possibility that he might be required to place a child with a same-sex couple and he asked to be relieved from such cases. This was refused and he resigned complaining that this was both direct and indirect discrimination and harassment, contrary to the regulations.

Justice Elias set out the test for determining whether views can properly be considered to fall into the category of a philosophical belief as being 'whether they have sufficient cogency, seriousness, cohesion and importance and are worthy of respect in a democratic society'.

The EAT found that there was no unlawful conduct of any kind as Mr McClintock chose not to put his objections on the basis of any religious or philosophical belief, and therefore did not engage the terms of the regulations. His employer was fully justified in insisting that magistrates must apply the law of the land as their oath requires, and cannot opt out of cases on the grounds that they may have to apply or give effect to laws to which they have a moral or other principled objection.

Religious belief

Another similar decision is McFarlane v Relate Avon Ltd (UKEAT00106/09/DA), in which the EAT considered the position where an employee felt that his religious beliefs prevented him from carrying out part of his job.

Mr McFarlane, a Christian, was employed as a relationship counsellor by Relate. He believed following biblical teaching that same-sex sexual activity is sinful. He asked to be exempted from any obligation to work with same-sex couples where sexual issues were involved. He was subsequently summarily dismissed and issued several claims including discrimination (both direct and indirect) contrary to the regulations.

The EAT held that there was no direct discrimination, as Mr Mcfarlane had not been dismissed because he was a Christian. He had been dismissed because he had manifested his beliefs in a way that was contrary to his employer's principles. Further, there was no indirect discrimination, as Relate was justified in requiring its employees to commit to following its policy of providing services in a non-discriminatory manner.

Solicitors should note that the EAT took into consideration the equal opportunities policy of Relate and also the code of ethics and principles of good practice of the British Association for Sexual and Relationship Therapy. In accordance with these, Relate offers its services to same-sex couples in precisely the same way as to heterosexual couples.

In December last year, the Court of Appeal in Ladele v London Borough of Islington [2009] EWCA Civ 1357 accepted that the London Borough of Islington Council had no alternative but to require a registrar, Ms Ladele, to perform civil partnership duties, as they would otherwise be in breach of their own legal obligations.

The court held that the council had neither directly or indirectly discriminated against her, nor unlawfully harassed her on the grounds of her religious belief, when it took disciplinary action against her for refusing to abide by its policy that all registrars carry out civil partnership ceremonies. She was last week refused permission to appeal to the Supreme Court, but reportedly is now considering taking her case to the European Court of Human Rights.

How can employers protect themselves

When the Nicholson judgment was released, sensational newspaper headlines warned that the floodgates would be opened to any fanciful claims. There has been a gradual increase in the amount of claims accepted by the tribunal since the regulations came into force '“ with 486 accepted in 2005/06, 648 in 2006/07, and 709 in 2007/08 (according to employment tribunals statistics). However, just because they are accepted by a tribunal, this does not necessarily mean they will be successful at a full hearing.

Disputes concerning the regulations frequently result in both parties becoming firmly entrenched in their perception of what is right and what is wrong in the circumstances. Employers should consult with their employee/s to establish if their concerns can be nipped in the bud at an early stage, and consider if mediation could find a workable solution before a potential dispute is formalised.

Many employers have already set up internal forums to discuss religion or belief issues in the workplace; the purpose of which is to engage all levels of staff and trade unions. Other employers have established task forces to engage with specific religious and philosophical groups to gather more information and raise awareness internally.

Education is the key, and employers should strongly consider organising equality training workshops, and ensure that all managers (particularly those who may have a role in the grievance or discipline procedures) are familiar with the regulations and also the questionnaire procedure. Employees should also be aware that they could potentially be held personally liable under the regulations.

When considering monitoring religion or belief within the workplace, employers should refer to the most recent employment guidance from the information commissioners webpage, and ensure that monitoring satisfies a sensitive data condition.

It is worth remembering that there are other organisations that can offer helpful (and sometimes free) support and guidance to solicitors; the Law Society Equality and Diversity initiative is an excellent example.

Employers should also review their existing policies, particularly any bullying and harassment policies, and dress code policies, and evaluate these on a regular basis.