Protecting Religion or Belief Discrimination

Religion or Belief Discrimination 

This note provides a comprehensive examination of religion or belief discrimination in employment under the Equality Act 2010 (EqA 2010). The EqA 2010 implemented aspects of the Equal Treatment Framework Directive (2000/78/EC), prohibiting direct and indirect discrimination, harassment, and victimisation in the workplace based on religion, religious belief, and philosophical belief. Religion or belief is one of nine protected characteristics under the Act, which takes a consistent approach across these characteristics where possible.

Definition of Religion or Belief

Under section 10 of the EqA 2010, "religion" means any religion, and this includes a lack of religion. "Belief" means any religious or philosophical belief, and this includes a lack of belief. All qualifying beliefs are equally protected, meaning philosophical beliefs can be as fundamental as religious ones.

For a belief to qualify for protection, it must meet the Grainger test, established by the Employment Appeal Tribunal (EAT) in Grainger plc and others v Nicholson. The criteria are:

• The belief must be genuinely held. For example, in Owen v Willow Tower Opco 1 Ltd, a care home workers refusal of a COVID-19 vaccine was not found to be based on a genuinely held belief in ethical veganism.

• It must be a belief, not merely an opinion or viewpoint based on available information. For instance, an objection to same-sex adoptions based on unconvincing evidence, rather than a matter of principle, was not considered a "belief".

• It must be a belief as to a weighty and substantial aspect of human life and behaviour. Beliefs in the sanctity of life (anti-fox hunting), public service broadcasting, and ethical veganism have been protected. However, fear of COVID-19 was deemed a reaction to physical harm, not a belief.

• It must attain a certain level of cogency, seriousness, cohesion, and importance. The "cogency" requirement does not mean the belief's scientific validity is examined; its internal coherence is key.

• It 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's decision in Forstater v CGD Europe significantly changed the interpretation of the fifth criterion. It held that only beliefs excluded by Article 17 of the ECHR (which prohibits abuse of Convention rights for activities aimed at destroying the rights and freedoms of others) would fail to be "worthy of respect". This includes beliefs akin to totalitarianism, Nazism, or those advocating violence and hatred in the gravest forms. Offensive or disturbing beliefs, even those that could be considered less serious hate speech, can still be protected. For instance, gender-critical beliefs (e.g., sex is immutable, trans women are men) were held to be protected. However, certain anti-Muslim beliefs within English nationalism, which were "disdainful and prejudiced" and sought to "stir up disdain and hatred," were found not to be protected, as they shared features with ideologies like Nazism.

Other examples of protected beliefs include:

• Genuine belief in climate change.

• Spiritualism and belief in mediums.

• Belief that lying is always wrong.

• Beliefs in the abhorrence of paedophilia/child sexual abuse and domestic violence.

• Belief that the UK should be a democratic and secular republic.

• Stoicism as a moral belief system.

• Opposition to critical race theory.

• Voodooism, as a developed religion with a clear structure and belief system.

Examples of beliefs not protected include:

• Supporting a football club (seen as a lifestyle choice, lacking cogency and importance).

• Belief that 9/11 and 7/7 were "false flag" operations (lacked coherence and cohesion, deemed "absurd").

• Belief that poppies should be worn from 2 November to Remembrance Sunday (lacked cogency, cohesion, and importance).

• A general fear of COVID-19 (a reaction to threat, too narrowly held).

• A belief in "every individual's fundamental right of freedom, dignity and bodily autonomy and integrity" (too wide-ranging, lacking cogency).

• Anti-feminist belief (questionable cogency, seriousness, cohesion, importance, and whether it was worthy of respect in a democratic society).

A lack of belief is also protected and does not need to be tested against the Grainger criteria.

Types of Discrimination Prohibited

Under the EqA 2010, it is unlawful for an employer to:

• Discriminate directly: Treating someone less favourably because of their religion or belief (or lack thereof).

• Discriminate indirectly: Applying a provision, criterion, or practice (PCP) that disadvantages individuals of a particular religion or belief without objective justification.

• Harassment: Engaging in unwanted conduct related to religion or belief that has the purpose or effect of violating dignity or creating an intimidating environment.

• Victimise: Subjecting someone to detriment because they have taken or intend to take steps under the EqA 2010, such as making a complaint.

Manifestation of Religion or Belief

While the right to hold a belief is absolute, the manifestation of that belief can be restricted under Article 9(2) of the ECHR if it is necessary in a democratic society for reasons like public safety or protecting the rights and freedoms of others. To count as a manifestation, there must be a sufficiently close and direct nexus between the act and the underlying belief.

The "separability principle" distinguishes between action taken because of the belief itself and action taken because of an objectionable way in which the belief was manifested. If the employer's response to an "objectionable manifestation" is objectively justified and proportionate, it may not be considered direct discrimination "because of" the belief. The Court of Appeal in Higgs v Farmor's School held that even for direct discrimination claims related to manifestation, an objective justification test is required to align with ECHR Article 9(2). This test involves a proportionality assessment, balancing the employee's rights against legitimate aims, considering factors like the content, tone, extent of manifestation, potential audience, intrusion on others' rights, reputational risk, power imbalance, and the least intrusive measure available. In Higgs, dismissing an employee for gender-critical Facebook posts was found to be direct discrimination because it was a disproportionate response.

Reputational damage is a key consideration; an employer may suffer harm from association with an employee who expresses beliefs publicly in an inappropriate way, but the threshold of offensiveness should be high. Employers should also avoid stereotyping beliefs; actions should be based on what the employee actually said, not on subjective inferences or stereotypes.

Common Areas of Conflict and Case Examples

• Dress Codes and Appearance: Policies on visible religious symbols (e.g., crosses, hijabs, turbans, kirpans, beards) are common.

  • The ECtHR in Eweida v British Airways found the ban on a Christian employee wearing a cross disproportionate, noting that BA's corporate image goal was legitimate but outweighed by the individual's right, especially as other religious symbols were allowed.

  • However, in Chaplin v Royal Devon & Exeter NHS Foundation Trust, a ban on a nurse wearing a crucifix was justified for health and safety reasons, deemed a greater magnitude than corporate image.

  • European Court of Justice (ECJ) rulings (e.g., Achbita, WABE) have stated that a general ban on all visible religious, political, or philosophical symbols can be objectively justified as pursuing a legitimate aim of neutrality, provided it is applied consistently and undifferentiated. However, a ban limited to "conspicuous, large-sized signs" is likely direct discrimination. UK tribunals, according to EHRC guidance, are unlikely to accept a policy of neutrality as a legitimate aim.

  • Sikhs wearing turbans are generally exempt from safety helmet requirements in most workplaces, and special treatment in this regard is not considered discrimination against others.

• Time Off for Prayers, Days of Rest, and Religious Holidays: Employers should try to accommodate requests for religious leave or prayer breaks if reasonable. Refusal can be indirect discrimination unless objectively justified by business needs (e.g., ensuring adequate staffing for security or teaching standards).

• Proselytising: Employers can prohibit employees from evangelising or "improperly foisting" their religious views on colleagues or service users, especially if it is unwanted or goes beyond consensual discussion. Such restrictions may be justified to maintain a professional service or prevent a hostile environment.

• Clash of Rights (Homosexuality and Gender Identity): This is a complex area where traditional religious views may conflict with other protected characteristics.

  • Refusal to provide services: Cases like Ladele (registrar refusing civil partnerships) and McFarlane (counsellor refusing services to same-sex couples) demonstrate that while holding beliefs is protected, refusal to perform job duties based on those beliefs, especially for public-facing roles or those impacting an organisation's ethos, can be a lawful reason for disciplinary action.

  • Expressing negative views: While holding views such as homosexuality being a sin is a protected belief (Omooba), the manifestation of those views can be restricted if it impacts others' rights or an employer's legitimate aims. In Omooba, termination of contract was due to commercial reasons stemming from a social media storm, not the belief itself.

  • Gender-critical beliefs: Following Forstater, gender-critical beliefs are protected philosophical beliefs. However, their expression must be balanced against the rights of others.

    • In Higgs, dismissal for gender-critical Facebook posts was direct discrimination because it was a disproportionate response by the school to perceived reputational damage.

    • In Phoenix v The Open University, a professor suffered harassment and direct discrimination for her gender-critical views when the university failed to protect her from colleagues' hostility.

    • In Mackereth v DWP, a doctor's refusal to use chosen pronouns for transgender patients was found not to be discriminatory, as anyone refusing to do so would have been treated similarly, and the employer's policy was proportionate to ensure respect and equal opportunities for service users.

    • In Orwin v East Riding of Yorkshire Council, an employee's "deliberately provocative" email signature (e.g., "XYchromosomeGuy / AdultHumanMale") in protest of a pronoun policy was deemed an inappropriate manifestation of his gender-critical beliefs, justifying his dismissal.

    • Adams v Edinburgh Rape Crisis Centre found harassment and indirect discrimination against an employee for her gender-critical beliefs, including when her manifestation of these beliefs was treated as a disciplinary matter.

Objective Justification and Exceptions

Indirect discrimination can be justified if the PCP is a proportionate means of achieving a legitimate aim. This involves a balancing act between the employer's needs and the discriminatory effect of the PCP.

Occupational Requirements (ORs) allow for lawful discrimination in specific roles. These are narrowly construed and require being of a particular religion or belief to be genuinely required for the nature or context of the work.

• General OR: Applies where being of a particular religion or belief is an OR, and its application is a proportionate means of achieving a legitimate aim.

• Organised Religion OR: Applies where employment is for the purposes of an organised religion, allowing requirements related to sex, sexual orientation, marriage, or gender reassignment to comply with religious doctrines or avoid conflict with followers' convictions.

• Religious Ethos OR: For employers with a religious ethos, being of a particular religion or belief can be an OR if it's proportionate to achieving a legitimate aim given the nature or context of the work.

Positive action provisions allow employers to take proportionate measures to address disadvantages or under-representation for particular protected characteristics without incurring discrimination claims.

Human Rights Context

Article 9 of the European Convention on Human Rights (ECHR) guarantees freedom of thought, conscience, and religion, including the freedom to manifest one's belief. This right is qualified, allowing limitations that are prescribed by law and necessary in a democratic society.

UK courts and tribunals must interpret UK legislation consistently with Convention rights. The European Court of Human Rights (ECtHR) ruling in Eweida significantly impacted how Article 9 is viewed in the workplace. Previously, the possibility of changing jobs was seen as negating interference with religious freedom. However, Eweida affirmed that Article 9 rights are engaged in the workplace, and the possibility of changing jobs does not negate interference but is weighed in the balance when assessing proportionality. The ruling also clarified that an act is a "manifestation" if it is "intimately linked" or has a "sufficiently close and direct nexus" to the belief, regardless of whether it's a mandatory religious duty.