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RELIGION AND DISCRIMINATION

Statutory framework

1. Religion and belief, as well as a lack of either, are protected characteristics under the

Equality Act 2010, s. 10(1) and (2). Belief means any religious or philosophical

belief.

2. Acas guidance lists the ten most commonly practices religions and beliefs in Britain.

However, fringe religions and membership of religious cults is also covered.

3. Beliefs do not have to be analogous to or similar with religious beliefs. The wording

religious or similar beliefs as contained within the Employment Equality (Religion

or Belief) Regulations 2003 has been widened by deleting the word similar.

However, any genuinely held belief is not protected.

4. Such beliefs must be established by evidence. They may not simply be assumed by

the Tribunal (see Grainger below).

5. Less favourable treatment because of religion or belief is prohibited; it can either be

direct or indirect discrimination. Schedule 9 of the Act sets out the exceptions which

includes an occupational requirement for a certain characteristic:

Which is a proportionate means of achieving a legitimate aim; and

The worker to whom the employer applies the requirement does not meet it (or

the employer has reasonable grounds for not being satisfied that the worker

meets it).

6. An example may be a support worker for Bangladeshi women: the occupational

requirement of being Bangladeshi (or speaking Bangladeshi) is likely to be justified.

Case law: belief

7. The EAT in Grainger Plc and others v Nicholson [2010] IRLR 4 set out guidelines

for deciding whether a belief is covered under the Act. The EAT considered

European case law under article 9 of the European Convention on Human Rights

and article 2, protocol 1.

8. This is the key authority which sets out what may or may not amount to a belief.

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9. A protected belief must:

be genuinely held;

be a belief and not an opinion or viewpoint based on the present state of

information available;

be a belief as to a weighty and substantial aspect of human life and behaviour;

attain a certain level of cogency, seriousness, cohesion and importance; and

be worthy of respect in a democratic society, be compatible with human dignity

and the fundamental rights of others.

10. Pacifism, environmentalism, vegetarianism and total abstinence from alcohol are

examples of beliefs which would be protected: Grainger at 20, citing Lord Nicholls in

R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC

246 at 24.

11. At first instance at least, membership of the Masons may also amount to a protected

belief. Scientology has held to be a religion or belief under article 9 in the

jurisprudence of the European Court of Human Rights.

12. Support for political parties itself does not qualify however, the belief in a political

philosophy or doctrine, e.g. communism, capitalism et cetera, may qualify.

13. Furthermore, a protected belief need not be widely held and may instead be one-off.

However, this will cause a potential claimant problems when it comes to showing

disadvantage.

14. Some first instance decisions assist in determining what may not amount to a

protected belief (all cited in Tucker and George at G3.006):

Williams v South Central Limited [2003]: loyalty to the U.S. flag;

Baggs v Fudge [2005]: membership of the British National Party;

Devine v Home Office [2004]: sympathy for asylum seekers;

Hashman v Milton park (Dorset) Ltd [2009]: fervent opposition to fox-hunting; and

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Maistry v BBC [2010]: belief in the higher purpose of public service broadcasting.

15. Where belief is contested, it will usually have to be resolved at a preliminary hearing.

Advisors should carefully consider the merit of contesting the existence of the belief

or whether it is protected.

Case law: direct discrimination

16. Dismissing a worker for promoting his or her religious beliefs is not direct

discrimination in itself; unless, for example, the employer would only dismiss the

adherent of a particular faith: Chondol v Liverpool City Council [2009]

UKEAT/0298/08.

C was dismissed for his proselytizing conduct rather than his religious beliefs;

What if a religion mandates proselytization?

17. In direct discrimination cases, under s. 13, the correct comparator is a person who

wants to carry out the same act.

18. For example, where a Muslim woman is not permitted to wear the veil, the

comparator would be a woman who also wants to wear the veil for some other

reason: Azmi v Kirklees Metropolitan Council [2007] IRLR 485, EAT.

This makes it harder to claim direct discrimination (which has no defence)

compared to indirect discrimination which may be justified.

Azmi wore a face-covering veil which her employer argued hindered her ability to

carry out her job, namely communicating with and supporting bi-lingual children.

19. In Azmi, the employers dress code, prohibiting face-covering veils, was a

proportionate means of achieving a legitimate aimnamely providing bi-lingual

support to children (see exceptions under Schedule 9).

There was no way of preventing the children missing important facial clues or to

make communication easier with the veil on.

A solicitor wishing to wear the veil to client conferences or to court? See the

Shabnam Mughal controversy involving Immigration Judge Glossop.

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What about the hijab? A blanket policy prohibiting it, even at a salon specialising

in urban, edgy and funky cuts which wants hairdressers to show off their hair

may be discriminatory: Bushra Noah v Sarah Desrosiers t/a The Wedge

Salon [2008] 2201867/2007 (the Claimant succeeded only on indirect

discrimination).

Case law: indirect discrimination

20. In indirect discrimination cases, under s. 19, a worker needs to prove that (1) a

provision, criterion or practice (2) puts them at a disadvantage compared to another

not sharing the workers religion or belief and (3) the employer cannot show it is a

proportionate means of achieving a legitimate aim.

The more obscure or unique the belief, the harder this will be; and

A few other sympathisers are not enough; the Tribunal must be satisfied that the

employer ought to have reasonably appreciated that the particular rule may have

an adverse impact on that group: Eweida v British Airways Plc [2010] IRLR,

322, EAT.

The wearing of a Christian Crucifix was the Claimants genuinely held belief but

not one shared generally.

21. The others not sharing the workers characteristic are the pool with which the worker

is compared. The appropriate pool is fact specific and depends on the type of

discrimination, evidence and other factors: London Underground Ltd. v Edwards

[1998] IRLR 364, CA.

22. The Tribunal will attempt to measure the extent of disadvantage. This may be done

through expert evidence or statistical analysis.

Clash of characteristics

23. Well publicised difficulties arise where a worker does not want to perform his or her

duties on religious grounds and this clashes with the rights of another protected

group:

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Ladele v London Borough of Islington and Liberty (Intervenor) [2010] IRLR

211, CA; where a worker refused to officiate (same sex) civil partnerships

because of their Christian beliefs; and

McFarlane v Relate Avon Ltd. [2010] IRLR 196, EAT; where a worker refused

to provide relationship counselling to same-sex couples.

Interesting witness statement in support by Lord Carey, the Former

Archbishop of Caterbury.

24. In such caseswhere there is an obligation to promote equal opportunities or

provide services without discriminationa dismissal is likely to be justified. Such a

dismissal is also unlikely to be direct discrimination as a refusal in these cases would

have resulted in dismissal irrespective of whether or not is was based on a belief.

Query whether the same result is likely in the case of a private sector employer?

How much will a religious belief tread on to the fundamental rights of others?

25. In other cases, where religious obligations conflict with the employers rules or

policies; the employer will have to demonstrate that the rule or policy is justified and

whether a non-discriminatory alternative could be found (c.f. Azmi).

26. The European Court of Human Rights considered the appeal by Eweida, Chaplin,

Ladele and McFarlane against the UK. Eweida was successful

IQBAL MOHAMMED

5 October 2013