Today, two of our partners go head to head over whether having religion and belief as separate protected characteristics under the equalities laws has in practice gone too far. The much publicised ‘gay cake’ case in Northern Ireland this week is a stark example of how various protections in the Equality Act can conflict with one-another and has led to irritation from the religious community and elation from the gay community: that is actually a relatively straightforward issue when compared to some of the more marginal beliefs that have been held to be worthy of protection.
In last month’s head-to-head, 75% of you agreed with the current law that being in the public interest should be a necessary requirement in order to get whistleblowing protection. The vote narrowed when asked whether compensation should be uncapped (as it is now), with only 58% believing it should. It looks like the legislation has the confidence of the public for the time being! Full results of the survey can be found here.
Unfortunately, the way the law is now being implemented has meant that religious discrimination has become a regressive step as it is often placed into conflict with other elements of the Equality Act.
Early interpretations of the Religion or Belief Regulations were practical and proportionate in implementing what is a very important piece of equal opportunities law. In particular, there were three areas that made it workable:
- The assumption that the protection would not apply to cults or more unusual beliefs. Baroness Warsi articulated this in the House of Lords and the wording that stated “cults and new religious movements might also be religions” was removed from the draft Equality and Human Rights Commission Code.
- In a claim of indirect discrimination, it had to be shown that any discrimination affected the religious group as a whole and not just an individual’s own way of practising their belief.
- UK tribunals and courts took the wording of the Human Rights Act into account when making their decisions. Religious belief would only be protected if it was “worthy of respect in a democratic society … and did not conflict with the fundamental rights of others”.
Many of the decisions concerning religious belief were sensible ones. Where someone needed reasonable time for religious holidays or to wear certain items of clothing as a member of their religion, this was allowed. Conversely, when a teaching assistant wanted to cover her whole body, as well as her eyes, this was unacceptable.
In a famous judgment, the House of Lords compared “personal characteristics” to a “series of concentric circles”. People are born with characteristics of gender, sexual orientation, skin colour, disabilities, etc but other characteristics might be acquired. Although many people are born into a religion, where their individual specific interpretation of that religion clashes with another inherent characteristic such as gender or sexuality, it was not protected.
The problem with religious belief and discrimination is that it has widened in each one of the three areas above:
- Beliefs that have come to be protected, at least by the European Court of Human Rights, include Druidism, Scientology and a belief that mediums can communicate with the dead. Other more philosophical views such as a belief in public service, in climate change or in being a vegan are also being protected. These are all areas for healthy debate in an open society but why should they be given the same extra level of protection as race, gender, disability, age and sexuality?
- There is no longer a requirement to show group disadvantage in cases of indirect discrimination. In a series of cases that went to the European Court of Human Rights in 2013, it was held that the issue is one of “individual thought and conscience”.
- The European Court of Human Rights has expressed concern over a decision that disallowed someone’s political belief - membership of the British National Party - because, according to the UK employment tribunal, it was something that could be offensive to the rights of others.
More and more, the UK tribunals are falling back on whether the employee’s requirements or actions are justified in relation to the rest of the workforce. This misses the point. Certain non-mainstream and extreme manifestations of belief should not be protected in the first place.
The Equality Act is a great piece of legislation but I fear that, as it is currently worded, religious discrimination allows the Act’s other protections to be undermined. All we need is a very simple fix. Let’s go back to the House of Lord’s judgment of “concentric circles” and add into the Equality Act wording that religion and belief will be protected “where it does not conflict with one of the other protections under this Act”.
The inclusion of religion and belief as protected characteristics under the Equality Act is not a regressive step.
Before the Religion or Belief Regulations came into force, protection against religious discrimination was limited. Certain religious groups were covered by race legislation if they had a common ethnic origin but this led to inequalities. For example, Sikhs and Jewish people were protected but Muslims were not.
The Regulations helped to address this. Initially, they only protected philosophical beliefs similar to religious beliefs and did not specifically protect non-believers. Progress has been made since then. The Equality Act covers any religion and any religious or philosophical belief (or lack of them). The law does not simply protect those with “mainstream” views. It can cover belief in matters such as the higher purpose of public service broadcasting and left-wing democratic socialism.
In a democratic society, who is to judge which beliefs are more worthy of protection than others? The Employment Appeal Tribunal (EAT) has rejected the suggestion that philosophical belief should be given less protection than religious belief. This is only fair.
We are not talking about trivial issues. To be protected, the belief must:
- be genuinely held
- be a belief and not just an opinion/viewpoint
- concern 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, not incompatible with human dignity and not in conflict with the fundamental rights of others.
OK, the EAT says that a belief in man-made climate change can amount to a philosophical belief but cases have also made it clear that, to be protected, a belief cannot be fictitious or capricious. A tribunal may accept that an unusual belief is capable of protection but it is often more difficult to show that the belief is genuinely held or that less favourable treatment occurred because of it.
Some may say that the religion or beliefs people hold are a choice and less worthy of protection than other protected characteristics such as gender, race or disability. This is debatable. To many, their religion or beliefs are core to who they are.
Current law does not give employees the right to do or say what they want. There are safeguards. Objectionable beliefs may not be protected because they are unworthy of respect in a democratic society. In practice, tribunals are unlikely to uphold claims based on such beliefs.
Many conflicts arise from manifestations of religion or beliefs, such as dress, rather than the religion or beliefs themselves. These can run counter to an employer’s policies, creating indirect discrimination claims, but the employer will often be able to justify the policy and defeat the claim.
Difficulties arise when religion or belief leads someone to discriminate due to a protected characteristic held by another. These cases often involve less favourable treatment of gay people. The right not to suffer sexual orientation discrimination has frequently trumped the rights of the believer. For example, in a recent Northern Irish case, a bakery was sued when a manager cancelled an order for a cake decorated with a motif supporting gay marriage. The gay customer successfully argued that the bakery should not refuse to provide the service on the grounds of sexual orientation.
It is right that a wide range of religions and beliefs are protected by our law. This is progress and there has not been a deluge of successful religion or belief claims as a result. For the most part, tribunals have taken a robust and sensible approach. Let’s hope that the proposed Bill of Rights is not a regressive step.