Do other forms of discrimination trump discrimination on the grounds of religion or belief?

There has been a great deal of recent case law in which the meaning of a “religious or philosophical belief” has been debated and others in which employees have, without success, claimed to have been discriminated against on the grounds of their religion or beliefs.  Although the ambit of “belief” appears to have been widened by cases which have held, for example, that a belief in climate change or Rastafarianism were beliefs similar to religious belief and therefore protected by law, the Employment Tribunals seem to have been reluctant to find that the holder of a religion or belief has been discriminated against when religious belief is used as the justification for behaviour at work which might be discriminatory against others.

The ambit of “religion or belief”

Before considering what is capable of constituting discrimination on the grounds of religion or belief, it is appropriate to consider the definition of a "religion or belief". 

It is not immediately clear from the Employment Equality (Religion or Belief) Regulations 2003 what might count as a religious or philosophical belief and therefore capable of protection.  “Religion” is simply defined as “any religion”, and “belief” as “any religious or philosophical belief”.  The Employment Appeal Tribunal (“EAT”) gave guidance on the definition of a philosophical belief in the case of Grainger plc and Others v Nicholson UKEAT/0219/09. 

In Grainger the Claimant said: “I have a strongly held philosophical belief about climate change and the environment.  I believe we must urgently cut carbon emissions to avoid catastrophic climate change…It is not merely an opinion but a philosophical belief which affects how I live my life including my choice of home, how I travel, what I buy, what I eat and drink, what I do with my waste and my hopes and fears”.

The EAT set out come criteria to help determine whether or not a belief should be protected by the law:

• 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, be not incompatible with human dignity and not conflict with the fundamental rights of others.

Clearly, the test involves a great deal of subjectivity and value judgements and could be seen to cover a wide range of beliefs with varying degrees of merit. 

However, case law does suggest that the protection afforded to holders of religious and philosophical beliefs is not as easy to claim as other protected categories of employee and Tribunals seem to draw a clear distinguish between holding a belief and manifesting it in the workplace.

Religion/Belief -vs- Sexual Orientation

There seems to be a potential conflict between religion/belief discrimination and sexual orientation discrimination:

Ladele v The London Borough of Islington [2009] EWCA Civ 1357

Ms Ladele was a registrar of Births, Marriages and Deaths who was later required to register civil partnerships as part of her job.  Ms Ladele objected to doing this, as she was a Christian and felt that she "could not reconcile her faith with taking an active part in enabling same sex unions to be formed".  She had discussions with her line manager and other colleagues about this, and for a while was able to swap assignments with other registrars to avoid officiating at civil ceremonies.  Two gay registrars complained about her conduct claiming that they felt “victimised”. 

Ms Ladele was subject to disciplinary proceedings the outcome of which was that she would be transferred to a contract of employment under which she would be required to perform civil partnership duties.  If she refused to perform the new contractual duties the council would discipline her.

The Tribunal originally found that the council had discriminated against Ms Ladele on the grounds of her religious beliefs but the council appealed, and the EAT allowed the appeal. 

The Court of Appeal, following an appeal by Ms Ladele, found that the correct comparator (used to determine whether or not there had been discrimination) would be another registrar who refused to conduct civil partnership work for reasons unconnected to or not based upon religious belief.  It was also found that the council acted as they did because of what she refused to do, rather than as a result of her beliefs.

The Court of Appeal also rejected the claim of indirect discrimination finding that the council had a legitimate aim in providing effective services relating to civil partnerships and that, as an employer and public authority, it was committed to promoting equal opportunities and to requiring all of its employees to act in a way which does not discriminate against others.  Ms Ladele’s objection was based on her view of marriage which was not a core part of her religion and the council's requirement did not prevent her from worshipping as she wished.

McFarlane v Relate Avon Ltd 2009 WL 4113826

Mr McFarlane worked for Relate and was a Christian.  He believed that same-sex sexual activity was sinful and that he should not do anything to endorse such activity.  He asked to undertake a diploma in psycho-sexual therapy (“PST”) but raised the possibility of being exempted from any obligation to work with same-sex couples where sexual issues were involved.  Relate's general manager made it clear to him that such a stance would conflict with Relate's equal opportunities policy to which he had expressly agreed to adhere when he joined.  Eventually he was subjected to disciplinary proceedings and summarily dismissed.

The EAT, in agreement with the Tribunal, rejected the claim for direct discrimination drawing a distinction between manifesting a religious belief through conduct and belief itself.  Further, there was no indirect discrimination as Relate was justified in requiring its employees to commit to following a policy of providing services in a non-discriminatory manner. 

These two cases seem to suggest that it will be very difficult for an employee to complain of discrimination on the grounds of religion or belief where the employee had refused to carry out duties on the basis that they find them objectionable resulting in a breach of an internal equal opportunities procedure.

Even when the act (or omission) by the employee is not itself discrimination against another but is something that an employer prohibits in any event, for example the wearing of a crucifix at work, then it seems unlikely that the Tribunals will find discrimination when it is an act (or omission) arising out of the employee’s manifestation of the belief rather than the belief itself which influences the employee’s behaviour.

Eweida v British Airways plc UKEAT/0123/08/LA

This is the widely-reported case regarding the member of BA’s check-in staff who was told that the wearing of a cross was a breach of BA’s uniform policy.  The matter to be decided was whether the enforcement of the dress policy constituted indirect discrimination.  Although it was accepted that the claimant had suffered a disadvantage, the EAT and the Court of Appeal agreed with the Tribunal that there was no group disadvantage.  In other words Ms. Eweida was not discriminated against because she was a Christian, but because she wanted to wear a cross. 

Chondol v Liverpool City Council  UKEAT/0298/08/JOJ

Mr Chondol was employed as a social worker.  The Council prohibited the overt promotion by social workers in the course of their work of any religious beliefs.  Mr Chondol breached this provision in that he had given a Bible to a service user and had attempted to promote his religious beliefs to another.  He had also taken another service user to his home outside of working hours.  Following an investigation he was dismissed for gross misconduct.  At the Tribunal his claim for religious discrimination failed on the ground that he was not treated on the ground of his religion but on the ground that he was improperly foisting it on service users.  The EAT agreed that the distinction between someone’s religious belief and the inappropriate promotion of that belief was valid.

In summary

It would appear that while a wide range of beliefs now fall within the ambit of a “religious or philosophical belief” it will not be discriminatory to discipline the holders of such beliefs if they are manifesting them in such a way as to breach an employer’s equal opportunities policy and/or to discriminate against others.  Employers are entitled to expect their staff to perform the duties which they are employed to perform and adhere to any policies that are in place.  Allowances must be made if the policy has the effect of directly or indirectly discriminating against the employee on the ground of religion or belief but only as long as it is discriminatory against the employee due to a requirement of their faith. 

The Employment Team at Birketts has a wide range of experience in dealing with discrimination issues.  For further information about this article or any other employment issues, contact Jolyon Berry or your usual employment lawyer at Birketts.

The content of this article is for general information only.  As always, specific professional advice should be taken on each individual matter.© Birketts LLP 2010.  Solicitors regulated by the Solicitors Regulation Authority.