A question of belief: employers need to be aware of wide scope for discrimination cases
Andreas White, June 10, 2011
In the strange new world of religion or belief discrimination, have we reached the final frontier? Some people believe that Trekkies – devoted fans of Star Trek – belong to a civil or quasi religion.
You may ask what on earth this has to do with HR: the answer is, the range of beliefs that qualify for protection against discrimination is far wider than many once thought possible. Protection against discrimination on the grounds of religion or belief has existed for some years, with the relevant provisions now enshrined in the Equality Act 2010.
However, recent decisions illustrate pitfalls for employers that fail to appreciate the wide scope of this area of employment law. It has become increasingly clear that a very wide range of beliefs may qualify for protection.
This article examines some notable examples and considers what employers can do to minimise the risks. It is no surprise that members of all the world's major religions are protected from discrimination.
There have been numerous reported cases of claims by members of, for example, the Christian, Islamic, Sikh and Jewish faiths. However, many employers are not aware that the explanatory notes to the Equality Act, as well as the Employment and Human Rights Commission Code, refer to a much broader range of religions, including (for example) Rastafarianism. Further, there is a body of European Court of Human Rights case law that recognises religions such as Druidism, Scientology, and the Divine Light Mission.
Employers cannot be expected to know the details of the belief systems of all of the religions of which their employees may or may not be members. However, if an employee comes forward to say that they are suffering religious discrimination in the workplace, then the employer would be well advised to treat any such complaint seriously, with an open mind, even if the beliefs concerned are far from mainstream. It is in the area of what constitutes a protected belief that the recent case law has been particularly interesting.
The case that grabbed all our attention and illustrated the wide potential scope of the law concerned belief in climate change and a moral duty to prevent it. It was held that this was a philosophical belief, attracting the same protection as religious beliefs. How are employers expected to know which beliefs will be protected? The Employment Appeal Tribunal said that there must be a genuinely held belief (not merely an opinion) as to a weighty and substantial aspect of human life and behaviour.
It also stated that the belief must attain "a certain level of cogency, seriousness, cohesion and importance". The belief must be worthy of respect in a democratic society, must not be incompatible with human dignity, and must not conflict with the fundamental rights of others.
These latter requirements have been successfully relied on by employers defending claims by employees holding extremist political beliefs, including, in one case, a revolutionary Marxist, and in others, members of the BNP. On the other hand, tribunals have recently held that anti-fox hunting beliefs, and a belief in the higher purpose of public service broadcasting, qualified for protection against discrimination.
Every case will turn on its own facts, and clearly it is very hard, if not impossible, for employers to know where to draw the line. Dignity at work policies need to be drafted with sufficient flexibility to take account of the potential for a whole range of beliefs to qualify for protection against discrimination, even ones which may be new or surprising. Unless you are dealing with extreme or offensive beliefs, you may wish to err on the side of caution when employees raise issues relating to their religion or belief in the workplace.
Equally, there are helpful precedents for employers of cases in which it has been held that the employee was not subjected to religion or belief discrimination at all, with the real issue being the employee's inappropriate manifestation of their beliefs in the workplace. These include the well-known case of the spiritualist who was dismissed by Manchester Police after he distributed posters and CDs about his spiritualist beliefs at work. It is also worth remembering that, just because an employee has a protected belief, this does not mean they have a valid discrimination claim.
It is one thing for the employee to prove as a preliminary issue that their particular beliefs should qualify for protection, but quite another for them to go on to prove that there was unlawful discrimination in their case. The growth of disputes in this area can be expected to continue, as employees test the boundaries of which beliefs qualify for protection and what amounts to religion or belief discrimination.
With no qualifying period of employment required to bring a claim, and the availability of uncapped damages and injury-to-feelings awards, some employees and their advisers will choose to run religion or belief discrimination claims instead of, or alongside, other more commonly encountered employment tribunal claims. We shall see if an employee is prepared to boldly go where no one has gone before, by claiming protection as a Trekkie. Stranger things have happened.
Andreas White (pictured) is an employment partner at law firm Kingsley Napley