Belief systems

The issue of religious discrimination in the workplace can be a huge challenge for many employers. Michael Stokes reviews recent developments.

No right-thinking person could believe that it is acceptable to discriminate against someone because of that person's religious belief…although as soon as I type that, I'm not so sure about what it means.

I know, in my bones, that it is wrong to treat someone badly because I don't like or share their religion. That feeling in my bones has been supported by legislation since 2003, when the Employment Equality (Religion or Belief) Regulations 2003 came into force. Those Regulations were superseded by the Equality Act 2010, but the essential provisions protecting workers from discrimination by reason of their religion have been preserved. The same protection from direct and indirect discrimination, and from harassment or victimisation, is now set out in the 2010 Act.

Of course, the first little complication with this type of employment protection is that it applies to those who hold not only religious, but also philosophical beliefs. And what can that extend to? Burton J in Grainger plc v Nicholson (EAT) gave the following answer:

• The belief must be genuinely held
• It must be a belief, and not an opinion or viewpoint based on the current 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, not be incompatible with human dignity and not conflict with the fundamental rights of others.

Some early examples of "beliefs" that have been approved by courts and tribunals are a belief in climate change, a belief against fox hunting and a belief in the higher purpose of public service broadcasting. Although a belief in a political party is thought not to attract protection, political philosophies like Marxism might do. However, in one case an Employment Tribunal found that the pure (or extreme – take your pick) Marxist/Trotskyist beliefs of the claimants were so incompatible with the rights of others that they did not come within the Grainger guidelines.

At least you know where you are with religious beliefs. Well, to some extent you do. Anyone who has been drafted in to help with a child's RE homework might stand a chance of naming ten established "world" religions – maybe – but those Grainger guidelines probably apply as much to religions as they do to philosophies, and when you think about it that way, it becomes clearer why philosophical beliefs got a look-in in the first place. Including them means that there is not even a hint that an Employment Tribunal in Truro or Lincoln is going to have to make a finding of fact about whether there is any foundation in a particular religious belief – even Employment Judge Richard Dawkins would have to accept that Christianity is a philosophical belief.

Having sorted out what is and what is not protected, we then move on to the difficult part for employers, which is that the rights that are granted by the 2010 Act – and I am thinking as well now about some of the other protected characteristics – do not always sit happily alongside one another. Indeed, in some cases they might more accurately be described as trying to hit each other over the head with iron bars.

One of the highest profile cases of this kind was Ladele v London Borough of Islington, which came about because the claimant, a Christian, was not willing to conduct civil partnership ceremonies as part of her duties as a Registrar working for the council. The council was committed to equality, and was found by the Court of Appeal to have had the legitimate aim of providing this service to residents in line with its equal opportunities policies, and that its policy of requiring all Registrars to carry out the full range of their duties was a proportionate means of achieving that legitimate aim. As a result, the claimant's indirect discrimination claim failed, even though it was held that the council's policy was a provision, criterion or practice that put people of the claimant's belief at a disadvantage.

As a public sector employer, Islington also faced an argument based on the Human Rights Act, in turn based on Article 9 of the European Convention on Human Rights (the right to freedom of religion and to manifest that religion). The answer to that argument was that Article 9 does not protect every act motivated or inspired by a religion or belief, and "does not require that one should be allowed to manifest one's religious belief at any time or place of one's choosing". That last quotation is from the House of Lords' judgment in R (Begum) v Governors of Denbigh High School, from 2007. Lawyers more familiar with jurisdictions underpinned by written constitutions have been used to courts having to adjudicate between conflicting rights, of course. Coming from a tradition in which new rights have been chiselled out of Parliament over many years, we are less used to those rights coming across each other, let alone clashing.

Not all of the headaches faced by employers are caused by the clash of conflicting rights. In another of the most newsworthy cases, BA's decision not to allow employees to wear "visible adornments" that were not mandatory requirements of the employee's religion was challenged by Nadia Eweida, described in the case reports as a devout Christian, who wished to wear a visible crucifix. I will not try to set out the full legal background to her case, which is now off to the ECHR (Ms Eweida having lost in the Court of Appeal), but what strikes me first about the case is that someone at BA seems to have tried very hard to come up with a rule that sought to apply a rigid dress code in such a way as not to upset anyone who was required by their religion to wear such an "adornment". However, BA's rule (since changed) ran into trouble partly because it involved a judgment by them as to whether Ms Eweida's cross was a mandatory requirement, and because those who practise a religion do not always agree about what is mandatory and what is voluntary.

And what of the needs or rights of third parties? As the Ladele case shows, the desire of an employer to provide a service in a particular way to a third party can provide the basis of a defence of justification in a claim of indirect discrimination. In Azmi v Kirklees MBC the EAT decided that the aim of the school of avoiding problems in facial and oral communication between the children at a school and their bilingual support worker, the claimant, was legitimate and that the means of achieving it, the requirement for her not to wear a veil that left only her eyes open to view, was proportionate.

An employer faced with such a situation can at least draw comfort from the EAT's approval of the policy that Kirklees MBC had formulated, which acknowledged the potential effects on the rights of some individuals and emphasised the need to look at every case on its own merits against the background of the principles set out in the policy.

The cases of Nadia Eweida and Lillian Ladele are now to be considered by the European Court of Human Rights, and our own Equality and Human Rights Commission has intervened in the proceedings and has lodged its own submissions in relation to the cases (and two other religious discrimination claims that are also to be considered). The Commission's general submission is that in the Eweida and Ladele cases the UK courts have given insufficient weight to Article 9(2), which deals with the right to manifest one's religion. We shall see if the court in Strasbourg approves of the UK courts' apparent willingness to make an individual's right to express their religious faith subordinate, in certain situations, to an employer's wish to meet its legal obligations to third parties and its other employees.

Employers who have only recently reviewed their policies to take account of the cases referred to above, and the many others that have been reported over the last four or five years, would be well advised to have their red pens handy again when the ECHR's judgment is published.

Michael Stokes is a Senior Associate at Harrison Clark LLP.