Member Article

Beliefs in the workplace

The issue of beliefs in the workplace has figured prominently in the news recently with the appointment of Paolo Di Canio as manager of Sunderland Football Club and the revelation of Twitter comments made by Britain’s first youth crime czar Paris Brown. Now would therefore appear a good time to review the law in this area.

UK employees have enjoyed specific protection against discrimination on the grounds of religion or belief since The Employment Equality (Religion or Belief) Regulations 2003 (“the 2003 Regulations”) came into force on 2 December 2003.

The introduction of The Equality Act 2010 (“the Act”) consolidated previous discrimination legislation including the 2003 Regulations and established religion or belief within nine “protected characteristics” to be afforded protection from discrimination.

Under the Act it is unlawful for an employer to:

• Treat a job applicant or employee less favourably than others because of religion or belief (direct discrimination);
• Apply a provision, criterion or practice that disadvantages job applicants or employees of a particular religion or belief unless they can objectively justify their actions (indirect discrimination);
• Subject a job applicant or employee to harassment related to religion or belief;
• Victimise a job applicant or employee because they have made or intend to make a complaint of religion or belief discrimination under the Act.

However, religion or belief discrimination is permitted in certain, limited, circumstances set out within the Act – one such example being where there is an occupational requirement for an employee to be of a particular religion or belief.

So what is defined as a religion or a belief?

Section 10 of the Act defines religion as “any religion and a reference to religion includes a reference to a lack of religion” and belief as “any religious or philosophical belief and a reference to belief includes a reference to a lack of belief”. Whilst not particularly illuminating, the definitions mirror those within the 2003 Regulations meaning case law which developed prior to the Act remains relevant to present cases.

Identifying a religion would appear more straightforward than identifying a belief, largely because the latter might be a religious belief, for example a belief in the strict adherence to a set of religious rules. The broad definition of religion in the Act is only really qualified by Article 9 of the European Convention on Human Rights which requires a religion to “have a clear structure and belief system”.

Although belief is equally broadly defined in the Act, what counts as a belief has been the subject of greater debate.

The case of Grainger Plc & others v Nicholson [2010] concerned whether Mr Nicholson’s environmentalist views and belief in climate change amounted to a belief for the purposes of the 2003 Regulations. In passing judgment the Employment Appeal Tribunal (“EAT”) laid down the following guidance on qualifying beliefs:

• The belief must be genuinely held by the believer (although it need not be shared by others);
• The belief must be more than an opinion or viewpoint;
• The belief must concern a weighty and substantial aspect of human life and behaviour;
• The belief must have a certain level of cogency, seriousness, cohesion and importance – and a similar status or cogency to a religious belief in the case of philosophical beliefs;
• The belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

The EAT also formed the view that political and scientific beliefs could be protected under the Act. The EAT reasoned that whilst supporting a political party might not amount to a belief, a belief in a political philosophy might do, whilst if Creationism (based on faith) would qualify as a belief Darwinism (based on science) must qualify too.

The Nicholson decision came close to conflicting with earlier decisions by the courts to refuse protection under the 2003 Regulations to extreme political views and political organisations whose views society might find repugnant.

For example, in Baggs v Fudge [2005], considered at a time when the 2003 Regulations expressly limited their protection to “religion, religious belief or similar philosophical belief”, an Employment Tribunal decided that the British National Party was “peculiar” and thereby rejected an employee’s claim that he had been discriminated against because he was a member. Meanwhile in Finnon v Asda Stores Ltd [2005], British Nationalism was rejected as a philosophical belief on the basis that it did not replicate major religions.

However, the potential conflict between the Nicholson decision and earlier decisions was averted by the guidance in the final two bullet points above – the requirement for a philosophical belief to have similar cogency or status to a religious belief (reintroducing the concept of similarity which is not expressly stated in the Act), and the requirement for a philosophical belief to be compatible with human dignity. As a result, it is likely that the Baggs and Finnon cases would reach the same result if they were heard today.

So, political beliefs may count as beliefs under the Act, however, the more extreme they are the less likely it is that they will. Why is this relevant? Well, protection from discrimination extends not only to employees but also to job applicants. Consequently, employers risk acting unlawfully if they base recruitment decisions, select job applicants or set terms of employment on the grounds religion or belief.

Employers will also potentially be liable for the discriminatory acts of their employees, agents and third parties. In the case of employees, an employer may be able to utilise the “reasonable steps” defence if it can show that it took all reasonable steps to prevent discrimination occurring in the course of the employee’s employment. However, this defence is not available to employers acting as principals in respect of their agents.

Further, as things currently stand, in certain circumstances an employer may be treated as harassing an employee if it fails to take reasonable steps to prevent discrimination by a third party. Given that members of the press or the public arguably count as third parties under the Act, this raises some testing issues. An employee might even argue that their employer’s failure to take reasonable steps to prevent discrimination itself amounts to unwanted conduct relating to religion or belief. With the rise of social media it will be difficult for an employer to argue that they were unaware that a high profile employee was being harassed.

Looking at the law away from the Act provides more reason for caution when dealing with political beliefs. In Redfearn v United Kingdom [2013] the European Court of Human Rights held that UK law should specifically protect employees dismissed on the ground of political opinion or affiliation, regardless of how extreme or distasteful. This places Parliament under pressure to give all employees the right to claim unfair dismissal if they have been dismissed because of their membership of a political party. However, even if the law is changed, extreme political views are still likely to fall outside the protection of the Act, whilst dismissal for membership of a political party is unlikely to become automatically unfair in which case employers will retain the ability to argue that dismissal was justifiable for “some other substantial reason” (for example, effect on the reputation of the business).

In summary then, beliefs clearly will affect an employee’s suitability for a job, with the more high profile appointments attracting the greater scrutiny. This is as much true from a question of practicality as it is from a legal point of view. However, the focus for employers should be on asking the right questions at interview and conducting the necessary investigation to be confident that they employ individuals whose beliefs are not incompatible with those of the organisation, or society at large.

This was posted in Bdaily's Members' News section by Paul Clark .