Articles of faith

What happens when an employee’s beliefs conflict with another’s or the employer’s equality policies? Sarah James analyses the case law.

The Employment Equality (Religion and Belief) Regulations 2003 prohibit discrimination in the workplace on grounds of religion or belief. Recent case law has provided some assistance in defining what constitutes belief and how to deal with the potential conflict between different employees’ rights.

What is religion or belief?

It is not immediately clear from the Regulations themselves what might count as a religious belief. The BIS Explanatory Guide provides some guidance by suggesting this includes factors such as collective worship, whether there is a clear belief system, and whether there is a profound belief affecting way of life or view of the world.

Defining a “philosophical belief” becomes a little bit more difficult. Useful guidance is provided in the case of Grainger plc and others v Nicholson UKEAT/0219/09 as follows:

• The belief must be genuinely held
• It must be a belief, not an opinion or viewpoint based on the present state of information available
• It must be a belief as to a weighty and substantial aspect of human life and behaviour
• It must attain a certain level of cogency, seriousness, cohesion and importance
• It must be worthy of respect in a democratic society.

In this particular case, Mr Nicholson argued that his belief relating to climate change was “not merely an opinion but a philosophical belief which affects how I live my life including my choice of home, how I travel, what I buy, what I eat and drink, what I do with my waste and my hopes and fears”. The tribunal held that his belief gave rise to a “moral order” similar to most religions.

To establish a “belief”, there must be a religious or philosophical viewpoint in which one actually believes as opposed to an opinion. In the case of McClintock v Dept of Constitutional Affairs [2008] IRLR 29, the claimant’s objection to the adoption of children by same-sex couples was not a “belief”. He had not, as a matter of principle, rejected the possibility that such adoptions could ever be in a child’s best interests, he merely felt that the current evidence to support them was unconvincing.

Changes to the wording of reg 2 (1) in 2007 sparked controversy, mainly focused on whether it extended the protection of the regulations to political views, and hence could protect members of the BNP or other extreme political organisations. Whilst a political belief can, in principle, be a philosophical belief provided it meets the elements of the test set out in Grainger, recent cases regarding the BNP have found otherwise. In Baggs v Fudge ET/1400114/05, the employment tribunal held that the BNP was “peculiar” in that it restricted its membership on racial grounds but did not require members to hold a particular religious, philosophical or political belief. In the case of Finnon v Asda Stores Ltd ET 2402142/05, the tribunal found that British Nationalism did not involve a clear belief system, or a profound belief affecting the way of life or view of the world.

Justification of indirect discrimination

Many employers understand what amounts to direct discrimination, but struggle with what amounts to indirect discrimination. There will be no indirect discrimination if the employer’s actions are a proportionate means of achieving a legitimate aim, ie a real business need. There are many recent cases which go some way to assisting employers in deciding what amounts to a legitimate aim.

In the case of Azmi v Kirklees Metropolitan Borough Council UKEAT/1801450/06 the EAT upheld a tribunal’s finding that an instruction to remove the claimant’s veil, which covered her face, had been issued to achieve a legitimate aim. As a bilingual support worker, it was essential that the children could see her face in order to understand her.

The issue of justification was central to the Court of Appeal’s decision in Ladele v London Borough of Islington [2009] UKEAT/0453/08. In this case, a Christian registrar refused to carry out civil partnership duties on the basis that same-sex relationships were against her religious beliefs. The council found her guilty of gross misconduct on the basis that her behaviour breached the council’s Dignity for All policy. It was agreed that the council had a legitimate aim in providing effective services relating to civil partnerships and that it was committed to promoting equal opportunities. Although there was evidence that the council could have fulfilled its aims without requiring Ms Ladele to carry out civil partnership duties, the Court of Appeal approved the EAT’s decision that  the council was entitled to require all registrars to perform the full range of civil partnership services.

In McFarlane v Relate Avon Ltd UKEAT/0106/09, the EAT upheld the tribunal’s decision that an employee had not been discriminated against on religious grounds where he had been dismissed for refusing, because of his religious beliefs, to provide psycho-sexual counselling services to same-sex couples. Relate was justified in requiring its employees to commit to following its policy of providing services in a non-discriminatory manner. Where an employee refuses to comply with his employer’s fundamental principals, the employer does not have to compromise in order to show justification.

It is notable that the reasoning in the Ladele case, which concerned a public sector employer, has now been applied to a case concerning a private sector employer.

Indirect discrimination: the impact in practice

One danger for an employer seeking to avoid indirect discrimination by making special provision for religion is that it may inadvertently give preferential treatment to members of particular religions, or to the religious over the non-religious. This is a real dilemma for many employers trying to balance the needs of a diverse workforce.

In Eweida v British Airways [2009] IRLR 78 (EAT), the employee was a Christian who wanted to attend church services on a Sunday. All staff were required to work Sundays as part of a rota. Ms Eweida argued that the company should not make her work on a Sunday and should give her requests priority due to her religious beliefs. The tribunal rejected these arguments.

The Eweida case is, perhaps, better known for the dress code policy which forbade staff wearing visible jewellery. It stated that any accessory or clothing which was a mandatory requirement of the person’s religion should be covered up unless it was impossible. Ms Eweida wanted to wear a silver cross on a necklace as a symbol of her Christianity. The dispute attracted a great deal of press coverage, which led BA to review its policy. The tribunal, and most recently the Court of Appeal have both dismissed her claim of indirect discrimination, holding that the policy did not put Christians at a "particular disadvantage" as the wearing of the cross, although motivated by Ms Eweida's faith, was a personal decision and not a requirement of Christian faith. The Court of Appeal added that the dress code policy which BA had operated had been justifiable as a proportionate means of achieving a legitimate aim, and went on to state that "it is not unthinkable that a blanket ban may sometimes be the only fair solution".

While freedom to hold a particular religious belief is absolute, Article 9 of the Convention permits legitimate restraints on the manifestation of religion. The courts have been reluctant to find that Article 9 is even engaged, particularly where the claimant has the power to remove themselves from the situation which is allegedly restricting their religious freedom, for example by finding new employment (Stedman v UK [1997] 23 EHRR CD 168).

Conclusion

One group’s rights must not be allowed to supersede another’s when it comes to individual rights in the workplace. Management must tolerate beliefs and not subject staff to any disadvantage because of them. The message is a simple one: employees are free to hold religious views but employers are entitled to require them to adhere to their equality policies.

Sarah James is a lawyer in the employment team at Dickinson Dees