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Religion or belief
[ch 7: pages 197-199]The protected characteristic of religion or belief includes any religion or philosophical belief, as well as a lack of any religion or philosophical belief (Section 10, EA 10). Acas guidance states that if a belief is profound and affects someone’s way of life or world-view, it is likely to be protected. In Grainger PLC & others v Nicholson [2010] IRLR 4, the EAT decided that a position on climate change and the environment could be a protected philosophical belief. In reaching this conclusion, the EAT noted how far Mr Grainger’s beliefs affected how he chose to live, such as his choice of home, method of travel and items he purchased. The EAT set the following tests for establishing whether an individual’s beliefs amount to protected philosophical beliefs. The belief must:
• be genuinely held;
• be a belief and not simply an opinion based on the present state of information available;
• concern a weighty and substantial aspect of human life and behaviour;
• have a certain level of cogency, seriousness, cohesion and importance; and
• be worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the rights of others.
A protected belief need not be a fully-fledged system of thought. Pacifism, vegetarianism, Darwinism, humanism and atheism are probably all covered. A belief in spiritualism is covered (Power v Greater Manchester Police Authority [2010] UKEAT0087/10/0810). In Nikiel-Wolski v Burton’s Foods Limited [2013] EqLR 192, an employment tribunal ruled that a very strong belief in personal freedom and privacy, respect for personal property, freedom from authoritarianism and respect for human rights could be a philosophical belief. So too can a belief in the “higher purpose” of public services broadcasting (Maistry v BBC [2011] EqLR 549). So can a profound belief that public money must not be used wastefully in the public sector (Harron v Dorset Police [2016] UKEAT/0234/15/DA).
The EHRC Code gives as an example of a belief that would not be protected, the belief in the racial superiority of a particular racial group. The Code states that this does not qualify for protection under the EA 10 because it is not compatible with human dignity and conflicts with the fundamental rights of others.
Workers have the right to manifest their religion at work (Article 9, European Convention on Human Rights). However, this right is qualified, not absolute. Workers are not allowed to manifest their religion by objecting to practices that are protected by other anti-discrimination laws, such as hard-won laws prohibiting discrimination against gay, lesbian and transgender workers. This was established in the following landmark ruling of the European Court of Human Rights (ECHR):
Ms Ladele, a registrar, and Mr McFarlane, a Relate counsellor, both practising Christians, were dismissed for refusing to officiate over a civil partnership, in the one case, or to counsel a gay couple, in the other. They challenged their dismissals in the ECHR, arguing that their human right to manifest their religion at work had been infringed. Ruling against them, the ECHR said that their employers’ equal opportunities and anti-discrimination policies had the legitimate aim of securing the rights of others, such as same-sex couples. These rights were also protected under the European Convention on Human Rights and trumped their right to manifest religious views. Differences in treatment based on sexual orientation need particularly serious justification, said the ECHR, because same-sex couples have the same needs for legal recognition and protection of their relationship as heterosexual couples.
The ECHR said it has a wide discretion to strike a balance between the employer’s need to protect the rights of others and a worker’s right to manifest their religion, and that in these cases, the correct balance was struck by the employers when they gave Ladele and McFarlane a choice between officiating at a civil partnership or counselling a gay couple or being dismissed. There was no basis for allowing them to continue doing their jobs but avoiding these duties because of their beliefs. No violation of the Convention had taken place.
Eweida and Others v The United Kingdom [2013] ECHR 37
Dismissing a worker for trying to convert work colleagues or patients to their beliefs (proselytising) is unlikely to be unlawful religious discrimination. For example, in Chondol v Liverpool City Council [2009] UKEAT 0298/08/1102, a Christian mental health worker in charge of vulnerable adults was not discriminated against when she was dismissed for giving clients copies of the Bible and visiting them outside of work unaccompanied, both of which were prohibited by her employer. She was not dismissed for manifesting her faith, but instead for going about it in a way that breached the employer’s rules and policies.
Similarly, in Grace v Places for Children [2013] UKEAT 0217/13/0511, a claimant was not discriminated against when she was dismissed for holding unauthorised training sessions where she discussed the Bible, leading to complaints from co-workers, and for disturbing co-workers with frightening predictions linked to her religious beliefs, such as suggesting that a pregnant co-worker might lose her baby.
Likewise, in Wasteney v East London NHS Trust [2016] UKEAT/0157/15/0704, it was not religious discrimination to issue a formal warning to an evangelical Christian in a senior hospital role for “grooming” a junior colleague of Muslim faith, including praying with her, laying on hands, giving her literature about faith conversion and inviting her to church events. This was all unwanted behaviour and amounted to improper pressure on a junior colleague, blurring the boundaries between professional and personal, and justifying the disciplinary warning.