The Equality and Human Rights Commission (EHRC) has produced a report, Religion or Belief: Is the Law Working?, which reviews whether the current law effectively protects the rights of employees, service providers and service users in relation to religion or belief and makes recommendations for changes. Steve Vale, HR Consultant, summarises its findings.

The Equality Act 2010 outlaws discrimination on the ground of religion or belief. This sounds straightforward enough in theory, but is problematic in practice. In the workplace, there has always been some confusion about the extent to which an employee’s right to follow his or her beliefs may compromise the business decisions of his or her employer, with high-profile tribunal cases over such matters as the wearing of religious symbols. There appears to be scope for more confusion in the future as the Government, perhaps emboldened by the Brexit vote, seeks to secure more integration and requires more explicit allegiance from workers to British values, with recent suggestions that all public service workers will have to take an oath to confirm their allegiance to such principles.

Background

The EHRC report explores whether Great Britain’s (ie the UK minus Northern Ireland) equality and human rights legal framework sufficiently protects individuals with a religion or belief while balancing the rights of others protected under the Equality Act 2010 (the Equality Act). It reflects the EHRC’s statutory duty to monitor the effectiveness of equality and human rights legislation and make recommendations to the Government about any changes that might be necessary.

The report focuses on four questions.

  1. Is the legal approach to defining a religion or a belief effective?

  2. Are the Equality Act exceptions allowing religion or belief requirements to influence employment decisions sufficient and appropriate?

  3. Does the law sufficiently protect employees wishing to manifest a religion or belief at work?

  4. Does the law sufficiently protect service users and service providers in relation to religion or belief?

The report draws on a call for evidence on religion or belief in employment and service delivery, made in 2015, and extensive engagement with stakeholders. Its starting point is that the law needs to protect competing rights fairly, for example, between the right to manifest religious belief and the rights of others not to be discriminated against.

The legal framework

The report sets out the current legal framework on discrimination on grounds of religion or belief, provided by the Human Rights Act 1998 and the Equality Act 2010.

  • Under the Human Rights Act

    Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his or her religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his or her religion or belief, in worship, teaching, practice and observance.

    The right to manifest the religion or belief in worship, teaching, practice and observance is, however, qualified, so that freedom to manifest one’s religion or beliefs are subject to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

    In order to assess whether an interference with someone’s rights is justified, the courts apply a three stage test: asking first, is there a legal basis for the interference? Second, does it pursue a legitimate aim? Third, is the interference “necessary in a democratic society”? This involves consideration of whether the interference is proportionate to the aim pursued: whether there is an alternative less intrusive means of protecting the public interest and whether a proper balance has been struck with any competing rights. In assessing proportionality, the state is allowed a discretion or “margin of appreciation” — the principle that in theory, the state is best placed to judge the necessity of a restriction.

    In addition, the Human Rights Act states that a court “must have particular regard to the importance” of the right to freedom, thought, conscience and religion by a religious organisation (itself or its members).

  • Under the Equality Act

    Individuals are protected from direct and indirect discrimination and harassment because of nine “protected characteristics”, including religion or belief, and from victimisation. Protection applies in the workplace, the provision of services and other contexts, and is subject to defined exceptions. The Equality Act defines “religion or belief” very broadly to include any religion; any religious or philosophical belief; a lack of religion; and a lack of belief.

    Indirect discrimination occurs where an employer or a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage. It will not amount to indirect discrimination if the person applying the provision, criterion or practice can show that it is “objectively justified”, that is “… a proportionate means of achieving a legitimate aim”. The test for justifying indirect discrimination is similar to the test for justifying an interference under the Human Rights Act.

    The Human Rights Act’s requirement that a court “must have particular regard to the importance” of the right to freedom, thought, conscience and religion by a religious organisation (itself or its members) is reflected in the Equality Act’s recognition that some religion or belief organisations may hold convictions that affect their role as employers and service providers. The Act therefore provides for limited exceptions to the duty not to discriminate. These include permitting organisations with a religious ethos to employ people of a particular religion where it is an occupational requirement, and allowing non-commercial organisations with a religious purpose to restrict the provision of goods and services to certain people.

Is the legal approach to defining a religion or a belief effective?

  • The report finds that generally, the definition of religion or belief in the Equality Act is sufficiently broad to ensure wide protection to many religions or beliefs.

  • While the courts have sometimes been required to decide whether an employee’s views amount to a religion or belief as intended by the Act, the EHRC does not favour the production and use of a list of recognised religions and beliefs to increase clarity on which are protected under the law. This is because:

    • such a list might be viewed as arbitrary and would be likely to exclude minority, emerging and less well-known religions and beliefs

    • it would also need to be reviewed and updated regularly

    • the possible negative impact of introducing a finite list would thus outweigh the increased certainty it might bring.

  • It concludes that any lack of clarity around what beliefs are protected continues to be tackled through the development of case law, although it signals that the EHRC will proactively seek out appropriate test cases to assist or in which to intervene as a third party.

  • As an example, it feels that the current case law definition of belief, which is that:

    • the belief must be genuinely held

    • it must be a belief, and not an opinion or viewpoint based on the present 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, compatible with human dignity and not conflict with the fundamental rights of others needs to be developed and clarified further through new test cases.

    To this end, the Commission says it will proactively seek out appropriate test cases to assist or in which to intervene as a third party.

  • Its formal recommendations are that:

    • no change is made to the broad definition of the protected characteristic of religion or belief in the Equality Act

    • no change is made to the current approach whereby the courts decide whether any particular religion or belief is protected under the Equality Act

    • the definition of the protected characteristic of belief should be clarified through case law.

    Employers would no doubt prefer greater clarity than is provided by a case law approach, not least because of the need to provide clear guidance to managers and employees, but the EHRC’s comments on the problems of coming up with definitive statements against a dynamic background where the nature and manifestation or religion and belief are constantly in a state of flux is probably the correct one.

Are the Equality Act exceptions allowing religion or belief requirements to influence employment decisions sufficient and appropriate?

  • The report notes that the call for evidence showed a continuing demand that commercial business owners (not public sector organisations) should be able to make decisions about whom they employ to reflect their own religious belief.

  • However, it rejects any change in this as it considers that the current Equality Act employment exceptions for employers with an ethos based on religion or belief already provide sufficient protection to such organisations to allow them to operate in a way that recognises the distinctiveness of their religion or belief. It says that the current requirements for organisations to balance non-discrimination principles with the requirements of a religion or belief in a way that ensures any restrictions to employment of people with particular characteristics are necessary and proportionate and should not be widened.

  • But, it raises one specific issue over employment in faith schools, and the wording of the provisions of the School Standards Framework Act (SSFA) in England and Wales and s.21(2A) of the Education (Scotland) Act 1980 in Scotland. These allow voluntary controlled or foundation schools with a religious character to consider a “person’s ability and fitness to preserve and develop the religious character of the school” when appointing a Head and to select up to one-fifth of “reserved” teachers on the basis of their fitness and competence to teach religious education. They allow such schools to consider “conduct … incompatible with the precepts or with the upholding of the tenets” of the religious character of the school when deciding to employ or terminate employment of any teacher.

  • The Commission says that these provisions are too broad in allowing voluntary-aided schools to consider the conduct of teachers, as this might open the door to discrimination on grounds of other protected characteristics, such as sex or sexual orientation discrimination. This potentially breaches the Article 4(2) of the EU Employment Equality Directive which requires that “difference of treatment” “should not justify discrimination on another ground”.

  • The EHRC would prefer a position whereby exceptions permitting a religious requirement which has a legitimate aim and is proportionate are enshrined as the means of allowing appointments which protect the religious ethos of schools. It says that the provisions regulating the appointment of teachers to schools with a religious character and denominational schools could be brought into line with the current occupational requirement exception set out in the Equality Act.

  • Its formal recommendations are that:

    • there should be no change to the current occupational exceptions allowed under the Equality Act in employment for employers with an ethos based on religion or belief, or for employment for the purposes of an organised religion

    • the Department for Education (DfE) should review ss.60(4) and (5) of the SSFA and the Scottish Government should review s.21(2A) of the Education (Scotland) Act to ensure their compatibility with the EU Employment Equality Directive.

    It is, of course, interesting that, post-referendum, the change sought by the EHRC is based on the requirements of European legislation. Logically, it appears likely, that notwithstanding the final terms of Brexit, the ethos underlying UK equality laws will continue to accord with the EU’s ethos. However, from a political perspective, the prospect that, in the current climate, the UK Government will change the law to secure better alignment with an EU directive is perhaps unrealistic.

Does the law sufficiently protect employees wishing to manifest a religion or belief at work?

  • Overall, the report concludes that the existing indirect discrimination model and the concept of balancing competing rights (where there is an apparent conflict between individuals or between an individual and the public interest) provides sufficient protection for people manifesting a religion or belief, and that no additional duty of reasonable accommodation is required. In the latter context, the report notes that there have been calls for Great Britain to follow the USA and Canada in placing a legal requirement on an employer to accommodate the religious practices of employees as long as this does not cause undue hardship to the employer.

  • It does not favour an additional duty of accommodation because:

    • it would not lead to substantial additional protection; the Equality Act as it stands does not prevent an employer from reaching an accommodation, unless doing so would breach discrimination law or other legal requirements such as health and safety legislation

    • employers should already consider seriously every request made for reasons relating to religion or belief, both for good practice reasons and to avoid the risk of indirect discrimination. They should only turn these down if they have objective reasons for their decision that can be justified, for example, the impact of the request on the business or on customers, and have taken into account both the rights of other individuals and the impact on the individual making the request

    • even if there were a duty of reasonable accommodation, the EHRC argues that it could never be used to permit discriminatory service provision or to allow employment arrangements which could have a discriminatory impact on colleagues.

  • Importantly, it also concludes that the law should not be changed to permit individuals to opt out of work duties, to accord with their religious or non-religious beliefs, where this has an actual or potential detrimental or discriminatory impact on others.

  • Thus the report says, the various legal judgments made over time on freedom of expression in the workplace and dress codes, the wearing of religious symbols and time off work are consistent and appropriate given the facts. What the cases show is that each situation is different, and the outcomes in individual cases are sensitive to the particular facts in each instance. As examples, the report refers to the following.

    • The European Court of Human Rights (ECHR) ruling in the case of a Christian nurse, Shirley Chaplin, who wore a crucifix on a chain over her uniform, and its acceptance that there was a risk that a disturbed patient might seize and pull the chain, thereby injuring herself or the applicant, or that the cross might swing forward and could, for example, come into contact with an open wound.

    • An employment tribunal finding which upheld a nursery’s request that a Muslim prospective nursery assistant, Tamanna Begum, wear a jilbab that was not so long as to present a tripping hazard due to legitimate health and safety considerations.

    • An Employment Appeal Tribunal upholding a school’s instruction to a Muslim bilingual support worker, Aishah Azmi, to remove her full veil while teaching as proportionate measure to ensure effective communication that supported teaching and learning.

    • The Court of Appeal’s finding that an employer was justified in requiring Celestina Mba, a Christian care worker in a children’s home, to work on the occasional Sunday, in accordance with her contract, as this was a proportionate means of achieving the council’s duty to ensure children had continuous care at weekends.

  • The ECHR also takes the view that the courts struck the right balance in protecting the religious freedom of the individuals and preventing discrimination against service users in the high-profile cases of:

    • Lillian Ladele, who was a registrar, and refused to officiate at civil partnership registrations on the grounds that same-sex relationships conflicted with her Christian beliefs

    • Gary McFarlane, a counsellor, who was reluctant to provide psycho-sexual therapy to same-sex couples for similar reasons.

    Both Ladele and McFarlane were eventually dismissed by their respective employers, Islington Borough Council (a public sector organisation) and Relate Avon (a charity providing a private service). The report endorses the courts’ decisions that Islington Borough Council had a legitimate aim in requiring all its employees to “act in a way which does not discriminate against others” in accordance with its Dignity for All policy and that Relate Avon had a legitimate aim of “providing a service without discrimination”.

  • On the other hand, the report considers that, where an employee wishes to opt out of his or her working arrangements, and this will not give rise to perceived or actual discrimination against others or any actual, or potential detrimental impact to other staff or to service users, the employer should consider the request seriously and should allow it unless there are objective reasons not to do so.

  • The report’s formal recommendations are that:

    • the legal framework should remain unchanged because the existing model of indirect discrimination and the concept of balancing rights in human rights law provide sufficient protection for people manifesting their religion or belief

    • a duty of reasonable accommodation should not be introduced into law

    • individual employees should not be permitted to opt out of performing part of their contractual work duties due to religion or belief where this would have a potential detrimental or discriminatory impact on others.

    Many employers would no doubt prefer greater clarity than reliance on case law, and a complicated “facts of the case” approach to the issues that can arise in this area. The EHRC’s recommendations will mean that dress codes and their enforcement remain a potentially fraught area for employers. It is possible that any future legislation on British values could propose more specific requirements in relation to public service employees over the wearing of certain clothes, jewellery, etc, although any such move would appear to be in conflict with the approach the EHRC continues to favour.

    However, public sector employers may be relieved that the EHRC has rejected the idea of a blanket right for individual employees to opt out of performing part of their contractual work duties due to religion or belief, as the practical implications of such a right (in terms of running services with efficiency and proper continuity) were potentially alarming.

Does the law sufficiently protect service users and service providers in relation to religion or belief?

  • The report notes that, while the Equality Act does not permit an individual or organisation to discriminate when providing services to the public by treating someone worse because of a protected characteristic, it provides an exception allowing a non-commercial religion or belief organisation to restrict services on the basis of sexual orientation because doing so is necessary to comply with its doctrine, or to avoid conflict with the strongly held convictions of a significant number of its members.

  • It also notes that there are arguments that this exception is too narrow and that any service provider where the owner has a religion or belief should be able to rely on the exception and restrict services on the basis of sexual orientation, and that some service providers believe that they should be entitled to refuse a service to any group where they can show that providing the service would not accord with their religious views.

  • The EHRC firmly rejects these arguments, reaffirming its view that the law does not and should not permit discriminatory service provision by public or commercial service providers. A service provider is permitted to provide a service that caters for specific religious needs but it may not treat customers on a discriminatory basis. Where a service is provided to the public, it must be provided to all on equal terms.

  • However, it is critical of organisations who, in its view, may go too far the other way in seeking to protect the rights of certain groups in deciding how to provide services. It cites the case of Digital Cinema Media (DCM), a company that supplies advertising to the majority of British cinemas, who refused to distribute a Church of England advertisement reciting the Lord’s Prayer on the grounds that it infringed its advertising policy which prohibits all religious or political advertising. While this action was lawful for a commercial company, the EHRC expresses concern that a single supplier (controlling a very large proportion of the market) was effectively able to impose a blanket ban on advertising of a religious nature. It is worried that such a ban did not sit well with the UN Guiding Principles on Business and Human Rights. These make clear the responsibility of all businesses to respect human rights, including the right to freedom of expression and the right to manifest one’s religion or belief, as well as to take appropriate action to prevent and mitigate adverse human rights impacts. The EHRC argues that, in fulfilling these responsibilities, businesses should avoid taking decisions based on an overly broad view of what might cause offence, as they could then limit freedom of expression for religion or belief organisations. It does not recommend any change in the law, but says that it will seek test cases to clarify issues around freedom of expression and freedom of thought, conscience and religion in relation to religious organisations.

  • The report also notes that, under the Equality Act, harassment related to religion or belief and sexual orientation is prohibited only in relation to employment. It does not apply in the provision of goods and services or the exercise of public functions, or in education. However, it rejects the extension of protection from harassment related to religion or belief to cover service delivery on the grounds that:

    • this was carefully considered during the passage of the Equality Act and it was rejected because of the risk that the broad definition of harassment, which allows for an element of subjectivity in what is considered offensive, could lead to an unwanted chilling effect on freedom of expression

    • “harassing” conduct related to religion or belief which causes a detriment is covered by direct discrimination protection.

  • The report’s formal recommendations are that:

    • the Equality Act should not be amended to permit religion or belief, or sexual orientation discrimination by organisations whose sole or main purpose is commercial

    • there should be clarification of the extent of freedom of expression and freedom of thought, conscience and religion in relation to religious organisations which is required, through case law

    • there should be no extension of harassment protections covering religion or belief to non-employment settings.

    While these provisions do not affect employment law and practice as such, the EHRC’s statements on balancing the protections in the Equality Act with rights to freedom of expression and freedom of thought, conscience and religion may, indirectly, be helpful to employers in considering how to handle practical issues which arise in managing employees and running their organisations.

Guidance and training

The report indicates that the evidence received by the EHRC, and meetings with a wide range of civil society, business and trade union stakeholders, suggest that employers and employees, service providers and service users are often unclear what the law requires and permits.

They are often unsure how to react or respond to a request related to an individual’s religion or belief, or how to manage diverse workplaces or diverse service user groups. (The report does not comment — though perhaps it should — on the fact that the continued reliance on case law it is recommending towards many aspects of interpreting the law has the potential to perpetuate this uncertainty.)

The EHRC therefore recognises a need to build knowledge and understanding of the law in this area, and confidence in applying it correctly in practical day-to-day situations. It will be providing a range of new information and making this available where people are most likely to seek it. This includes:

  • publishing guidance on its website to explain to employers and service providers the questions they should consider when dealing with a request related to an individual’s religion or belief

  • work with Acas to launch an online training module for line managers

  • work with the TUC to provide online training for union representatives.

The report notes that several organisations with a religious focus have also independently published their own guidance recently.

The EHRC believes that easier access to consistent information will help employers and employees, and service providers and service users identify practical and lawful ways of responding to requests related to an individual’s religion or belief, and help reduce litigation.

Overall conclusions of the report

The EHRC summarises its overall position as follows.

  • The Equality Act and the Human Rights Act provide sufficient protection for individuals with and without a religion or belief, religion or belief organisations and other protected groups.

  • The definition of religion or belief in the Equality Act is sufficiently broad to ensure protection to many religions or beliefs.

  • The existing indirect discrimination model and the concept of balancing rights in human rights law where there is an apparent conflict between individuals or between an individual and the public interest already provide sufficient protection for people manifesting a religion or belief, and that no additional duty of reasonable accommodation is required.

  • Strongly supportive of the view that the law should not permit individuals to opt out of work duties, to accord with their religion or belief views, where this has an actual or potential detrimental or discriminatory impact on others.

  • The current exceptions allowed under the Equality Act in employment for employers with an ethos based on religion or belief, or for the purposes of an organised religion, provide sufficient protection to allow them to operate in a way that recognises the distinctiveness of their religion or belief.

  • Change is needed in some areas, such as the exceptions permitted to voluntary controlled and voluntary aided schools by the SSFA in England and Wales.

  • Clarification of the law is required through case law in several respects, including the definition of belief and the extent of freedom of expression and freedom of thought, conscience and religion in relation to religious organisations.

For public sector employers, the most important findings from the report are probably the endorsement of the current case law approach to the thorny issues around employees wishing to manifest a religion or belief at work (eg dress codes, the wearing of religious symbols, time off work and exemptions from duties) and the need to build knowledge and understanding of the law in this area, and confidence in applying it correctly in practical day-to-day situations.

The latter implies that a considerable amount of work needs to be done to train managers at all levels, so that they have a better understanding of the principles which underpin the current legal framework and can apply them in practice (or, at least, know when to call for help in doing so). Such training may be even more vital in the post-Brexit era, when there is danger that media and political statements could be misinterpreted by managers and employees, leading to risky decisions which may be at odds with the law.

Reference

Religion or Belief: Is the Law Working?, Equality and Human Rights Commission, December 2016.

Steve Vale is a Consultant in Human Resources and is a regular contributor to Croner-i HR for Local Government. Croner-i HR for Local Government is an online employment law and practice reference source designed specifically for HR Managers and their teams in local government.

Last reviewed 2 February 2017