Religion, belief and non-discrimination law

Abstract

Over the past eleven years, the British government has passed a number of laws that specifically tackle, or include directly in their provisions, protection of the freedom of ‘religion or belief’ – based on the right to hold or not to hold religious or other philosophical beliefs. This paper looks specifically at how ‘religion or belief’ is defined, particularly in relation to the Equality Act 2006 / 2007, and locates this within the wider policy-led and academic attempts to define ‘religion’. Looking at some of the implications of the definitions applied, it goes on to summarise key elements of current law on non-discrimination, drawing on public sources and examples from the Equality and Human Rights Commission. Nothing in this background paper constitutes legal advice or should be read as constituting such advice. If you have legal questions or requirements, please consult a qualified lawyer.

1. Introduction

Over the past eleven years, the British government has passed a number of laws that specifically tackle, or include directly in their provisions, protection of the freedom of ‘religion or belief’. The principle pieces of legislation are:

• Employment Equality (Religion or Belief) Regulations 2003
• Equality Act 2006 / 2007
• Racial and Religious Hatred Act 2006
• Human Rights Act 1998.

Also relevant to these issues is the European Convention on Human Rights (http://www.hri.org/docs/ECHR50.html), which has a bearing on the interpretation of case law (see section 2).

An overarching framework is the Universal Declaration of Human Rights adopted by the United Nations in 1948 (http://www.un.org/Overview/rights.html), which enunciates and enshrines the principles of freedom of religion and freedom of expression.

It is worth noting that Part 2 of the Equality Act, which came into force on 30 April 2007, deals with the prohibition of discrimination on grounds of religion or belief when providing goods, facilities and services, education, using or disposing of premises and exercising public functions. The government has produced guidance on this legislation. This can be viewed and downloaded at: http://tinyurl.com/2ulslb

Under the range of existing human rights and anti-discrimination legislation, everyone has the right to hold their own religious beliefs or to hold other philosophically-based beliefs deemed ‘similar to a religion’. They also have the right to have no religion or no belief at all.

Under the Equality Act 2006 (http://www.opsi.gov.uk/acts/acts2006/ukpga_20060003_en_1), it is unlawful for someone to discriminate against another because of his or her religion or belief (or because he or she has no religion or belief). This anti-discrimination requirement applies:

* in any aspect of employment
* when goods, facilities and services are being provided
* when education is being provided
* in using or disposing of premises, or
* when exercising public functions.

There are, however, some limited exceptions when discrimination may be lawful. These are outlined later in this paper (section 7).

Under British anti-discrimination and human rights legislation, people are also entitled to practise their religion or belief, to express their views and to get on with their day-to-day lives without experiencing threats or discrimination.

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2. What is a religion?

Defining ‘religion’ is a notoriously difficult business. Academics have come up with a range of descriptions, some based on specific attributes and others on ‘families of resemblance’, some based on analytical categories and others on experiential ones.

While it is usually possible to identify a particular religious institution, community or group, the concept of ‘religion’ per se is difficult to sustain – and the philosopher / theologian Nicholas Lash (writing in The Beginning and the End of ‘Religion’, Cambridge University Press, 1996) and elsewhere, argues that it lacks coherence. (http://tinyurl.com/dmee49)

For example, it is can be reasonably posited that certain a-theistic Buddhist groups and certain fundamentalist Christian churches (say) are both part of transcendence-oriented ‘religions’, plural, for the sake of recognition. But suggesting that they are subsets of a larger category, ‘religion’ in the abstract, lacks specific explanatory force, because one holds a non-realist and the other a realist view of God / the Ultimate, they are structured very differently, they operate different moral systems, they have different metaphysics, and they engage in quite different rituals.

For another interesting discussion of the problems involved in arriving at a universally agreeable definition of 'religion', followed by a particular philosophical and theological account from the author, see John Hick, An Interpretation of Religion (Macmillan Academic, 1991), pages 3-15 (http://tinyurl.com/b4wobq).

It cannot be stressed too strongly that the interest of the law in this area is not to resolve disputes about religion or belief, or to assess the validity or credibility of particular beliefs, but to offer sufficiently clear parameters of recognition in order to determine what can or cannot be counted within these categories.

The Employment Equality (Religion or Belief) Regulations 2003 (http://www.opsi.gov.uk/si/si2003/20031660.htm) offered no fixed definition of religion, but left it to tribunals or higher courts to decide on reasoned grounds if disputes arose.

The Equality Act 2006 goes further, but with as much economy as possible. It contains basic definitions of a ‘religion’ or a ‘belief’ for the purposes of identification and recognition, such that they can be reliably interpreted by the courts with reference to relevant case law, including cases relating to the European Convention on Human Rights (ECHR).

In order to be protected under the Equality Act 2006, a religion or belief must be able to be generally recognised as being:

* cogent
* serious
* cohesive
* compatible with human dignity.

In broad terms, the first three of these mean, in turn: comprehensible; practiced with regularity and earnestness by adherents; and capable of being recognised as a common practice / system.

(This would include all the major religions in Britain. But it would readily exclude, for example, the ‘Jedi Knights’ write-in to the last UK census.)

The fourth specification is potentially more problematic, because what constitutes, affirms or denies ‘human dignity’ may be subject to disagreement with or beyond specific religions or belief systems. Here the Universal Declaration of Human Rights may be appealed to.

(It is worth noting, inter alia, that the concept of human rights as a claim for universal values and standards is in itself a ‘convenient fiction’, as moral philosopher Alisdair Macintyre (http://tinyurl.com/bo892m) and others have pointed out. This is because it cannot be definitively established to irrefutable global satisfaction on indisputable philosophical or rational grounds – it can only be appealed to as a morally aspirational and juridical standard in practice, and by either social / cultural / spiritual persuasion or legal / political enforcement.)

The concept of a ‘religion’ embodied in the Equality Act 2006 includes religions that are widely recognised in Britain (although it is not limited to these). Principally, these are:

* Baha’i
* Buddhism
* Christianity
* Hinduism
* Islam
* Jainism
* Judaism
* Rastafarianism
* Sikhism
* Zoroastrianism

Denominations or sects within a religion will also be considered as religions, or religious beliefs. So will the major branches of a religion, such as Catholicism, Orthodoxy and Protestantism, which are the three principle ‘family trees’ of Christianity – though Anglicans often like to label themselves as a fourth.

Controversial issues include whether Scientology may be counted as a religion under this concept (this has been a matter of legal challenge in Germany and elsewhere) and whether the refusal of certain forms of medical treatment, such as blood transfusions or organ transplant operations, by Jehovah’s Witnesses and others, is acceptable in terms of ‘human dignity’. Case law suggests that in particular instances it is not. Here the distinction between the impact on a professing individual and the impact on others (children and relatives, for example) can be crucial.

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3. What is a belief?

For the purposes of the Equality Act 2006, 'belief' is defined as including philosophical convictions about life per se, such as Humanism, which are considered to be similar to a religion – in that they can be shown to be cogent, serious, cohesive and compatible with human dignity – not in the sense that they rest on the same metaphysical assumptions or tendencies.

Of late the term has become religion or belief, rather than religion and belief. This is in order to recognise that people who include faith as apart of their belief system (that is, people who posit speculative, traditional and/or experiential grounds for going beyond the forensically demonstrable) and people who refuse or deny such inferences, traditions and possibilities usually accept being seen in distinct, if adjoining, categories.

Religion and belief tends to elide these different ways of holding beliefs too readily, whereas for those practicing religions or beliefs it is usually not desirable simply to roll all belief into religion any more than it is helpful to roll specific religions into a catch-all category of beliefs.

The Equality Act does not protect other categories of beliefs, such as supporting a political party, subscribing to a larger political creed, or lifestyle options like veganism (which may form part of a religion or belief, but is not one in its own right).

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4. Issues arising from the concept of ‘religion or belief’

a) It should be noted that the question of belief in, or debates about the existence or meaning of a transcendent reality (including divinity, God or gods) is not involved in offering a conceptual definition of ‘religion or belief’ as far as the law is concerned. Not all religions are explicitly metaphysical in this sense. All could be said to define themselves in terms of what Hick calls ‘human apprehensions of the transcendent’, either with a lower case or upper case ‘t’. But the specific ways this happens will be at variance.

b) The question of how particular religious or philosophical beliefs and convictions are arrived at and authorised is also not involved.

c) As has been noted, the word ‘or’ (rather than ‘and’) in ‘religion or belief’ is significant, in that it acknowledges that ‘belief’ is not synonymous with religion, but may include convictions about the meaning of life, the constitution of existence, the human person and ethical or moral behaviour derived from non-religious sources – those that usually reject, are question or are disinterested in the category of ‘the transcendent’ in establishing value and behaviour.

d) Questions may arise concerning the relationship between the religious and philosophical beliefs of an individual (since the law is concerned with the rights of individuals) and the regulative or variable convictions of the religious community, understood as ‘a community of conviction.’ For example, many religious communities uphold codes of behaviour in relation to sex, which restrict it to married or committed relationships, and to heterosexual couples. But there are significant alternative, minority and scholarly interpretations which dispute the ‘majority’ or ‘authorised’ teaching, for example on Lesbian, Gay, Bisexual and Transgender relationships. These too may have a claim to being cogent, serious, cohesive and compatible with human dignity. In cases where individuals claim exemptions, or make challenges, on the basis that an action or process involving them ‘goes against the Bible’s teaching’, courts seem routinely to accept majority or popular views and will not regard themselves as having the duty or competence to adjudicate about deeper disputes over religious or philosophical beliefs.

e) Though the concept of ‘religion or belief’ is derived in order to safeguard the rights of individuals, it implicitly recognises that the belief systems and communities that people belong to in directing their lives are public bodies, and that the holding of these beliefs impinges on life in ‘the public square’, not simply within the household or as a matter of entirely private conviction. It also implicitly recognises, without seeking to adjudicate, the fact that beliefs may clash.

f) There may be a tension or even a contradiction between protecting the freedom of ‘religion or belief’ and protecting other rights and freedoms. The concept of ‘religion or belief’ does not and cannot resolve such tensions, but the aim of the law and those who implement it is to decide what is a fair balance between varying or competing interests ‘when rights clash’, in the absence of agreement about this in society at large. In this sense, through democratic parliamentary scrutiny, statute and implementation, there is an attempt to recognise and balance the public interests and freedoms of individuals in a mixed society, across varied ‘equality strands’.

g) The concept of ‘religion or belief’ is therefore not an absolute definition, but a non-regulative descriptive apparatus designed to ensure, in as many cases as possible, effective and common recognition of what may legitimately be claimed as religion or belief in terms of claims on the law, with the adjudicating authorities having a final say, based on reasonable data and interpretation, in the case of disputes.

h) In practice, the concept has proved effective so far, despite the many questions it raises – and which may be raised about it.

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5. What, then, is religion or belief discrimination?

The prime purpose of this paper has been to clarify the concept of ‘religion or belief’ pertaining to recent protective legislation in Britain. In terms of its current application, material explaining what is involved is available on official government websites in the public domain.

On its website, the Equality and Human Rights Commission (EHRC) provides what is perhaps the most direct and accessible overview of the range of discrimination on grounds of religion that may be tackled by the law, with examples derived from specific cases. (Many of these are included in the following sections, with grateful acknowledgement, but more are available on the EHRC site).

Religious or belief discrimination, says EHRC, “can occur in instances where unfair treatment, as defined by the law, occurs because a person does not have the same religious or philosophical beliefs as someone else, or because they have no religious beliefs. It involves being treated less favourably than somebody else who does share their religion or belief.”

It goes on to say [material quoted directly from EHRC]:

It may also occur because of the religious or philosophical beliefs of someone you (the person concerned) are associated with, or if someone thinks you have certain beliefs when actually you do not and acts in a discriminatory way in relation to this.

There are four types of discrimination on grounds of religion or belief. Religious hate crimes are a criminal matter and are dealt with by the police.

Direct discrimination

Direct religious discrimination is when you are treated less favourably because:

* somebody does not like your religious or philosophical beliefs
* you don’t have the same religious or philosophical beliefs as someone else, or you have none
* someone associates you with somebody whose religious or philosophical beliefs they don’t like.

Indirect discrimination

If an organisation has policies, criteria or processes that put you at a disadvantage because of your religious or philosophical beliefs, or because you have none, this may be indirect discrimination.

Harassment

Harassment because of religion or belief is behaviour that is intimidating, frightening or in any way distressing. Harassment can also be aimed at someone because they have no religion or belief.

Harassment in the workplace is unlawful on grounds of an individual’s religion or belief, or none, and is covered by the Employment Equality (Religion or Belief) Regulations 2003. This form of harassment is defined in law as unwanted conduct that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.

Harassment on grounds of religion or belief may be obvious bullying or it can be unintentional or hidden. It can be aimed at:

* your beliefs or religious practices
* the religion or philosophical belief itself
* a religion or belief that a person is associated with.

Harassment does not have to be aimed at an individual. A general culture of telling jokes about a certain religion, for example, might amount to harassment.

Organisations may be held responsible for harassment carried out by their staff in the workplace, or at an event or venue associated with work.

Victimisation

Victimisation is when a person is treated badly because they have made a complaint about discrimination or have given evidence in a discrimination case.

This could include:

* labelling the person a ‘troublemaker’
* denying them opportunities or services they would normally have (such as a promotion at work)
* ignoring them.

A person who victimises someone else can be forced to pay his or her victim compensation. This also applies to organisations that do not stop their employees victimising somebody.

Hate crimes

If someone threatens, abuses or attacks you because of your religion or belief (or lack thereof), this may amount to what is called a ‘hate crime’. Hate crimes are criminal offences, and you should report them to the police.

Hate crimes can include:

* physical attacks and damage to your property
* offensive letters, emails or phone calls
* groups of people intimidating you
* insults or offensive leaflets or posters
* dumping rubbish outside your home or through your letterbox
* bullying at school or work.

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6. When and where can discrimination take place?

Working and earning

There are laws to protect you from discrimination on grounds of religion or belief when you apply for a job, while you work and after you leave a company. You are also protected if you have no religion or belief.

Example: During an interview, a Christian woman refers to the church that she regularly attends. Although she has the skills to do the job successfully, the interviewer does not employ her, because she does not like the idea of working alongside someone who believes in God. This would be unlawful direct discrimination.

Example: A Sikh man takes his employer to a tribunal for banning ‘headwear’, as his religion says he must wear a turban. He later leaves the company and asks his old employer for a reference. The employer refuses, saying that the man is a ‘troublemaker’ and he couldn’t recommend him to another employer. This would be unlawful victimisation.

Example: A manager arranges for his team to go to football matches once a month. During these trips, a group of employees chant anti-Muslim slogans and make offensive comments about Islam. The manager does nothing to stop his staff’s behaviour. This is an example of religious harassment. Companies can be held responsible for harassment carried out by their staff in the workplace or at an event or venue associated with work.

Example: A religious woman frequently refers to her colleagues as ‘sinners’ and warns them that they will go to hell if they do not convert to her religion. This is an example of religious harassment.

Example: A man who is an atheist is targeted by his Christian colleague, who believes that she must try to convert him to her religion. She leaves religious texts on his desk and tries to engage him in conversations about Christianity. The man complains to his employer, who tells him to ignore her. This is an example of harassment from a colleague on grounds of no religious belief. The employer is also liable to legal action for failing to deal with the harassment.

Learning and training

Your religious beliefs – or lack of them – should not affect your access to education or training (although certain forms of selection by schools according to religion or belief may be lawful in some circumstances). Nor should it affect the quality of what you are taught.

Shops and services

Nobody has the right to refuse you products or services because of your religion or belief, or because you have no religion or belief.

Example: A hotel owner refuses to allow a Muslim couple to book a room because he is wary of Muslims following the 2005 terrorist bombings in London. This would be unlawful direct discrimination.

Example: A manager at a religious charity gives his receptionist the sack when he finds out that she no longer has religious beliefs. This is likely to be seen as direct discrimination, as the receptionist does not need to have religious beliefs in order to carry out her job.

Health and social care

Health and social care services should meet the needs of people from all backgrounds. You should not be treated less favourably than anyone else because of your religion or belief, or because you have no religion or belief.

Example: A patient gives evidence against a doctor at a tribunal where the doctor is responding to allegations of religious discrimination. He now finds that whenever he tries to book an appointment with his GP, the receptionists say that no appointment is available. This is an example of unlawful victimisation.

Example: A nurse repeatedly mocks a patient about the religious clothes worn by his family members when they visit the hospital. When the patient complains, he is told not to worry, as the nurse is only ‘having a laugh’. This is an example of religious harassment.

Housing

Regardless of your religion or belief (or lack thereof), you have the same housing rights as everybody else. You also have the right to enjoy your home and property without harassment.

Example: A landlord will only open a laundry room on a Saturday. This suits most of the tenants, who are Christian. However, some tenants are Jewish and Muslim. Saturday is their religious day and they are unable to use the laundry when it is open. The landlord’s policy is an example of indirect religious discrimination.

Example: A woman gives evidence at a tribunal against a landlord who had religiously discriminated against another tenant. She finds that after she has given evidence her landlord will no longer let her use the property’s communal gardens. This is an example of victimisation.

Example: A seller instructs an estate agent not to sell her home to Muslims. This is an unlawful instruction to discriminate on grounds of religion. If the estate agent accepted the instruction, the seller and the agent would be liable to legal action for direct discrimination on religious grounds.

Justice

It is unlawful to treat you less favourably than someone else on the grounds of your religion or belief (or lack thereof) when it comes to access to, or quality of service from, the criminal justice system. This includes the police, legal services and the courts.

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7. When does the law allow religious discrimination?

In most circumstances, it is unlawful to discriminate against you on the grounds of your religion or belief, but there are some limited exceptions where discrimination may be lawful.

* A genuine occupational requirement
* Positive action
* Justifying indirect discrimination

A genuine occupational requirement

In very limited circumstances, an employer can claim that a certain religion or belief is necessary for a role. In other words, the religion or belief is considered to be a genuine occupational requirement. Similar exceptions apply to other grounds for discrimination, such as race and gender.

Example: An organisation whose work is based on a specific religion or belief may be able to use this rule. A Catholic care home might be able to show that its carers should be Catholic because their work will involve them meeting a client’s spiritual needs. But they might not be able to make the same claim for their reception staff, who do not need to provide spiritual leadership or support the clients.

The British Humanist Association also reserves some leadership posts for committed humanists, but not administrative or other posts which do not effect its policy and communication work in advocating humanist convictions and life stances.

Where ‘genuine occupational requirement’ is cited, applicants may not always agree that such a rule is appropriate or fair for a particular job. If so, they can still claim they have been unlawfully discriminated against. The employer would need to be able to explain and justify the rule.

Positive action

The term ‘positive action’ refers to legal measures that are designed to counteract the effects of past discrimination and to help abolish stereotyping. Positive action can be taken to encourage people of a particular religion or belief to take advantage of opportunities for training or work experience schemes, or encourage them to apply for particular employment. It can only be done when a particular group has been identified as under-represented in a certain area of employment.

Positive action may include things like introducing fair selection procedures, training programmes or targeting job advertisements at a particular group. Positive action is not the same as positive discrimination, and does not involve treating particular groups more favourably when recruiting. Employers must make sure that employees are hired or promoted on merit alone. At the point when a candidate is selected, their religion or belief must not be taken into account.

Example: A local authority is concerned that, despite having a large local Muslim population, few Muslims apply for jobs that are advertised by the authority. When advertising for staff, the authority states that it encourages job applications from people with religious beliefs that are under-represented in their organisation. At the same time, the authority makes it clear that all job applications are treated strictly on merit. The authority also contacts local Muslim community representatives and organisations, asking them to encourage suitably qualified people to apply.

Justifying indirect discrimination

In some circumstances, indirect discrimination on grounds of religion or belief may be justifiable as far as the law is concerned. But only if it is considered to be a proportionate means of achieving a legitimate aim.

For someone to justify indirect discrimination, they would need to show that there is a genuine business need for a policy that is a particular disadvantage to a certain religion or belief, and that there is no alternative to it.

These types of legally acceptable justifications apply only to indirect religious discrimination, and not to direct religious discrimination.

Example: A company requires its employees to work late on Friday afternoons to analyse stock prices in the American stock market. This is because global time changes mean that the prices arrive late in the day. In the winter months, some staff want to leave early in order to complete particular religious observances before nightfall. Employees offer to make up the time during the rest of the week. But the company cannot agree to this, as the American prices are vital to the business. So the requirement to work on Friday afternoon is not against the law.

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SOURCES AND REFERENCES

Commission on Equality and Human Rights, 2008 (from whom all the examples in sections 5 to 7 are drawn, with grateful acknowledgement – see the EHRC website: http://www.equalityhumanrights.com/ ); Employment Equality (Religion or Belief) Regulations 2003; Racial and Religious Hatred Act 2006; John Hick, An Interpretation of Religion (Macmillan Academic, 1991) - http://tinyurl.com/b4wobq ; Nicholas Lash, The Beginning and the End of ‘Religion’ (Cambridge University Press, 1996) - http://tinyurl.com/dmee49 ; Alasdair Macintyre, Whose rationality? Which justice? (Duckworth, 1988) - http://tinyurl.com/bo892m ; ACAS, 'Religion or Belief in the Workplace' (*.PDF document: http://www.acas.org.uk/media/pdf/f/l/religion_1.pdf ); ‘Guidance on new measures to outlaw discrimination on grounds of religio or belief in the provision of goods, facilities and services’, Department for Communities and Local Government, April 2007.

The first four sections of this paper were delivered in summary to two conferences (in Birmingham and Cardiff) on Religion or Belief and Equality and Human Rights organised by the BHA (http://www.humanism.org.uk/meet-up/conferences), involving both religious and non-religious speakers and participants, and supported by EHRC. Thanks are due to participants for comments, questions and illuminations.

Nothing in this background paper constitutes legal advice or should be read as constituting such advice. If you have legal questions or requirements, please consult a qualified lawyer.