Religion or belief discrimination Michael Rubenstein Publisher, Equal Opportunities Review Editor, Industrial Relations Law Reports

Meaning of “religion” Religion means any religion and a reference to religion includes a reference to lack of religion.” No definition as such Likely to include any religion with a clear structure and belief system “Lack of religion” covers non-believers and those discriminated against because they are not of a particular religion or belief

Meaning of “belief” “Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.” Original definition referred to a philosophical belief that was “similar” to a religious belief.

Grainger plc v Nicholson In order to be a protected “philosophical belief”, it must be: “genuinely held” a “belief” rather than merely an opinion about a “weighty and substantial aspect of human life and behaviour” “worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others”

Political beliefs Political opinion not covered by British legislation Burton J in Grainger: “belief in the political philosophies of socialism, Marxism, communism or free-market capitalism might qualify.” Fascism/BNP membership?

Redfearn v UK ECHR holds dismissal of BNP councillor from job as bus driver contravened right to “freedom of association” contrary to Article 11. Government removed 2-year qualifying period for unfair dismissal claim where reason for dismissal relates to employee’s political opinion or affiliation.

BNP ECHR: “BNP was not an illegal party under domestic law nor were its activities illegal.”

Direct discrimination “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

Indirect discrimination (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.

Pool for comparison “On a comparison of cases...there must be no material difference between the circumstances relating to each case.”

European Convention on Human Rights: Article 9 “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only 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.”

Ms Eweida

Adverse impact: UK courts Eweida v British Airways: Indirect discrimination is about group disadvantage and there was no evidence that a group of Christians were put “at a particular disadvantage” by BA’s uniform policy not allowing the claimant to wear a cross outside her uniform.

Eweida v UK: meaning of manifestation Act must be “intimately linked” to the religion or belief but no requirement to establish that applicant “acted in fulfilment of a duty mandated by the religion in question.” Applies to indirect discrimination claims under Equality Act.

Justification test Stedman: Sunday working requirement did not contravene Article 9 because applicant was free to find another job. Eweida: Possibility of changing job should be weighed in the balance when considering whether the restriction was proportionate.

Eweida Claim succeeded because ECHR finds that UK courts did not strike a fair balance and accorded too much weight to the employer’s wish to project a certain corporate image.

Ms Chaplin Claim failed because protection of health and safety on hospital ward of greater importance.

Ms Ladele

Ladele and McFarlane Claims failed because a wide margin of appreciation is allowed to national authorities in striking a balance between competing Convention rights – ie right to manifest religious convictions and right not to be discriminated against because of sexual orientation.

A duty of adjustment? Where there is little evidence that the rights or interests of others will be infringed by allowing the religious manifestation, likely to be unjustified not to allow it. Lady Hale in Bull: “I am more than ready to accept that the scope for reasonable accommodation is part of the proportionality assessment.”

Doogan Lady Hale: “Petitioners may claim that...their employers should have made reasonable adjustments to the requirements of the job in order to cater for their religious beliefs.”

Mba v London Borough of Merton Size of the group affected is not relevant where Article 9 is engaged. Issue is whether religious practices of claimant can be reasonably accommodated.

Possible adjustments Manifestation of belief, including clothing, appearance and jewellery Time off work Adapting work duties

SAS v France ECtHR upholds French legislation criminalising public face covering as contrary to respect for “living together”

Contact