Articles

22.04.2009
Religion and Belief

The Employment Equality (Religion or Belief) Regulations 2003 (“the regulations”) were made under the European Communities Act 1972 in order to implement in domestic law the UK’s obligations under the Equal Treatment in Employment Directive 2000/78/EC. The regulations are broadly similar to existing discrimination legislation, offering protection in the employment arena for those who hold a particular “religion or belief”.

The regulations do not define “religion or belief” beyond simply specifying that “religion” means any religion, that “belief” means “any religious or philosophical belief” and that lack of religion and lack of belief are also protected. This definition has applied since the 30^th April 2007 following amendments made pursuant to section 77 Equality Act 2006.

Parliament appears not to have intended to protect political beliefs under either definition – see by way of contrast the explicit protection for political opinion as well as religious belief afforded by the Fair Employment and Treatment (Northern Ireland) Order 1998.

Regulation 3 (as amended) defines discrimination in terms both of direct (“on the grounds of”) and indirect discrimination. Protection is also afforded in respect of discrimination by reference to a person’s association with people of a particular religion or belief and in respect of the perception of a person’s religion or belief. Regulation 4 prohibits discrimination by victimisation and regulation 5 prohibits harassment.

Regulation 7 provides for a defence of “genuine occupational requirement”. There are two types of requirement: one general and one where the employer has an ethos based on religion or belief. For the general defence to apply being of a particular religion or belief must be a genuine and determining occupation or requirement and it must be proportionate to apply the “GOR” to the particular case.  The ethos based “GOR” is wider than the general defence and depends on the requirement to be of a particular religion or belief being genuine and again, it must be proportionate to apply it.

In order to establish indirect discrimination under the regulations as a result of the application by A to B of a PCP applied generally, B must show both that he has been put at a disadvantage and that persons of the same religion or belief as B have been put at a “particular disadvantage” compared with other persons (group disadvantage).

The EAT has considered the meaning and application of the regulations in respect of compatibility of the regulations with the ECHR¹, comparators for direct discrimination², group disadvantage for indirect discrimination³, the Genuine Occupational Requirement exception⁴. Further guidance on some of the key concepts can be found in the decisions in Williamson⁵, Begum⁶ and Watkins Singh⁷.

The areas generating the most recent interest have been those of the correct approach to direct discrimination and to the justification defence in relation to indirect discrimination. Most recently the EAT (Elias P) has considered these issues in LONDON BOROUGH OF ISLINGTON v MISS L LADELE⁸.

The claimant was a Registrar who, amongst other things, registered marriages.  When the Civil Partnerships Act came into force, she refused to participate in registering such partnerships because to do so was inconsistent with her religious beliefs.  The council insisted that she should undertake at least some of these duties, and disciplined her and threatened her with dismissal when she refused.

She alleged that she had been discriminated against by reason of her religious belief in various ways.  The allegations were that there had been direct discrimination, indirect discrimination and harassment.   The indirect discrimination argument was based on the fact that the council had chosen to designate the claimant as someone suitable to do civil partnership work notwithstanding that they knew that she had genuine and strong religious reasons for not wanting to do it. 

The EAT held that the Tribunal had erred in law and that on the evidence adduced before the Tribunal there was no proper basis for a tribunal concluding that any of these forms of discrimination had been established.  Accordingly, the appeal was upheld and a finding that there was no discrimination substituted.

Ms Ladele believes, as do many Christians, that marriage is the union of one man and one woman for life to the exclusion of all others. She believes that the Civil Partnership Act 2004, which allows males and females of the same sex to enter into civil partnerships recognised by law, in substance allows marriage between couples of the same sex. She considers such unions to be contrary to God’s laws and a sin. The Civil Partnership Act came into force on 5 December 2005. The effect of the Act, together with various other legislative amendments, is to give equivalent financial and legal recognition to same sex couples as apply to opposite sex couples who choose to marry. It is not in fact a marriage. Ms Ladele made it plain from the summer of 2004 that she would have difficulties conducting civil partnerships because of her religious beliefs. The claimant’s line manager and Superintendent Registrar decided that civil partnership duty should be shared out among existing staff in roughly the same proportion as marriages. That was not something the claimant wished and she was not consulted about it.

There were two other registrars who at this time also objected to carrying out these duties. One accepted an offer of different employment on the same pay, which removed the dilemma. Another, a Muslim woman who also raised similar objections, left the Council’s service.  The Claimant was asked to sign a letter confirming that she would comply with the requirement to perform the ceremonies and threatened with disciplinary action. Matters deteriorated and the Claimant was told that she would be disciplined after a hearing took place but this was held in abeyance pending the legal proceedings.

The EAT set out detailed guidance on the case law at paragraphs 24 to 41.

The Employment Tribunal found direct and indirect discrimination as well as harassment. On direct discrimination, the EAT stated the claim was “quite unsustainable”. The EAT said as follows: “The claimant’s complaint on this score is not that she was treated differently from others; rather it was that she was not treated differently when she ought to have been.   The council refused to make an exception of her because of her religious convictions. That is a complaint about a failure to accommodate her difference, rather than a complaint that she is being discriminated against because of that difference. The council has been blind to her religion, and she submits that they ought not to have been. It cannot constitute direct discrimination to treat all employees in precisely the same way. It could be direct discrimination if the employer was willing to make exceptions to the general rule but was not willing to do so for a particular worker by reason of a legally prohibited ground.  But that is not this case.  Of course, a failure to accommodate difference may well give rise to a claim of indirect discrimination; the very nature of that claim typically starts from the premise that the same apparently neutral rule applies equally to all but has an adverse effect on a particular group.  Where that is so, the rule needs to be justified...

In our judgment, the Tribunal has fallen into the trap of confusing the council’s reasons for treating the claimant as they did with her reasons for acting as she did. As we have said, these are not the same thing at all.  If any support is needed for that self evident proposition, it is found both in authority and policy.”

The ET had failed to analyse direct discrimination. The question then arising is this.  Is it open to a tribunal to find that the treatment meted out to the claimant was because of her religious beliefs or was it for some other reason, such as because of her conduct in refusing to carry out civil partnership duties? If there were some evidence that the reason was the religious belief then that would provide a justification for putting the matter before a fresh Tribunal.

The EAT stated:

“As to the fact that they could not compel her to carry out these duties, even assuming this to be true (and we accept that this was the understanding of the council) it does not lend any support to her claim for direct discrimination.  She was not objecting to carrying out these duties because it was outside her legal obligations (or if she was, it was not the principal objection.).  This is demonstrated by the fact that she sought to avoid the difficulties by changing rosters.  Her fundamental objection was always that her religious beliefs obliged her not to carry out these duties.  Had she said that in principle she would do this work but was refusing because she was not prepared to be required to take on fresh responsibilities, this would have been a wholly different case.” 

Therefore:

“We can see no real evidence which begins to justify an inference that the claimant was subjected to disciplinary action because of her beliefs rather because she insisted on giving effect to those beliefs by refusing to participate in civil partnership work.”

The EAT also thought that there was no sustainable case on harassment. On indirect discrimination, it was:

“..accepted in this case that the council’s requirement that all registrars perform civil partnership functions had the effect of placing persons of the claimant’s religion or belief at a particular disadvantage when compared with other persons, namely those who did not share her religious beliefs about same sex relationships. She was personally placed at a disadvantage because of the disciplinary action taken against her and the risk of loss of job as a disciplinary sanction. The only issue now in play is whether the council can show that the application of this provision was, to use the language of the Regulations, a proportionate means of achieving a legitimate aim.”

The Tribunal decided that the aim to provide effective civil partnership arrangements’ service as an employer public authority which is wholly committed to the promotion of equal opportunities and to fight discrimination was a legitimate aim. The issue was whether there was a proportionate response. The ET concluded that the service could be provided perfectly satisfactorily without the claimant having to conduct civil partnership duties (a point not disputed) and that the Respondent placed a greater value on the rights of the lesbian, gay, bisexual and transsexual community than it placed on the rights of Ms Ladele as one holding an orthodox Christian belief. The Employment Appeal Tribunal stated:

“In our judgment, the Tribunal wrongly applied the proportionality test.   That is not to be determined by a vague attempt to balance irreconcilable positions.  The focus should be on whether the means adopted are a proportionate way of achieving a legitimate aim. As Pill LJ pointed out in Hardys and Hansons v Lax [2005] IRLR 726 para 33, this requires a careful and sophisticated analysis of the employer’s justification defence. The Tribunal did not apply that test.  In our judgment, if one applies the statutory test, the council was entitled to adopt the position it did.  Once it is accepted that the aim of providing the service on a non-discriminatory basis was legitimate -and in truth it was bound to be- then in our view it must follow that the council were entitled to require all registrars to perform the full range of services.  They were entitled in these circumstances to say that the claimant could not pick and choose what duties she would perform depending upon whether they were in accordance with her religious views, at least in circumstances where her personal stance involved discrimination on grounds of sexual orientation.  That stance was inconsistent with the non-discriminatory objectives which the council thought it important to espouse both to their staff and the wider community…the issue is not, as the Tribunal found, a matter of giving equal respect to the religious rights of the claimant and the rights of the gay community.  It is whether, given the legitimate aim, the means adopted by the council to achieve that aim were proportional. “

The regulations promise to provide a number of further challenges in what is an area provoking strong feelings and, as Ladele shows us, the potential for conflict between the considerations of more than one discrimination strand.

 

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