Religion and controversy are never far apart. In the world of employment law the headlines are all too familiar: the Muslim hairdresser who was refused a job because of her headscarf, the British Airways employee who was banned from wearing a cross and the Relate counsellor who was dismissed for refusing to counsel gay couples. These cases have highlighted the difficulties faced by employers in upholding the principle of equal treatment, especially where the interests of one or more protected groups collide. This article looks at several recent cases that have begun to test the limits of religion and belief discrimination. It examines the extent to which non-religious beliefs may be protected and the conflict between personal beliefs and employment obligations.
Grainger plc & Ors v Nicholson [2009]: Climate Change
In Grainger plc Mr T Nicholson was employed by the UK’s largest residential landlord, Grainger plc, as head of sustainability until his dismissal in July 2008. He was a fervent believer in mitigating the effects of climate change and protecting the environment, subscribing to the belief that:
‘Mankind is heading towards catastrophic climate change and therefore we are all under a moral duty to lead our lives in a manner which mitigates or avoids this catastrophe for the benefit of future generations, and to persuade others to do the same.’
Grainger claimed that Nicholson had been made redundant. Nicholson claimed that he had been discriminated against on grounds of his beliefs. The Employment Equality (Religion or Belief) Regulations 2003 (the 2003 Regulations) protect employees against discrimination on grounds of ‘any religious or philosophical belief’. The preliminary issue to be determined in this case was whether Nicholson’s beliefs could amount to a philosophical belief under the 2003 Regulations. The Employment Tribunal (ET) at first instance found that they could, taking the view that it was not appropriate to examine the claimant’s beliefs in depth because the doctrine of freedom of religion is designed to protect the subjective belief of an individual. On appeal, the Employment Appeal Tribunal (EAT) found that it would not always be appropriate to apply this subjective test to a philosophical belief. To establish a religious belief, the claimant may only need to show that they follow a particular religion. To establish a philosophical belief under the 2003 Regulations, however, something more is necessary and it is likely that claimants will need to be cross-examined to determine whether their philosophical belief falls within the ambit of protection.
European Convention on Human Rights (ECHR)
In determining what limits should be placed on the words ‘philosophical belief’ in the context of the 2003 Regulations, the EAT sought guidance from the ECHR, which is referenced in the recitals to the the EC Framework Directive (on which the 2003 Regulations are based). Under the Human Rights Act 1998, it is incumbent on domestic courts to ensure that domestic laws are compatible with the ECHR. The relevant provisions of the ECHR are:
‘Article 9(1)Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom… to manifest his religion or belief, in worship, teaching, practice, and observance.
Article 9(2)Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’
It is notable that, under article 9(1), a belief need not even be a philosophical belief to qualify for protection. The right is simply to manifest one’s religion or belief in worship, teaching, practice and observance. Indeed, it has been held that pacifism, vegetarianism and total abstinence from alcohol are uncontroversial examples of beliefs that would fall within article 9.
Definition of a philosophical belief
Citing relevant ECHR case law, the EAT held that for a philosophical belief to qualify for protection under the 2003 Regulations it must:
- be genuinely held;
- not be an opinion or viewpoint;
- be as to a weighty and substantial aspect of human life and behaviour;
- attain a certain level of cogency, seriousness, cohesion and importance; and
- be worthy of respect in a democratic society, and not be incompatible with human dignity or in conflict with the fundamental rights of others.
The EAT did not accept the employer’s argument that to qualify for protection, a philosophical belief must form part of a system of beliefs or be connected with the fundamental aspects of human existence. Burton J stated that there is no need for a philosophical belief to amount to an ‘-ism’ or allude to a fully fledged system of thought, provided that it satisfies the above criteria:
‘I conclude that it is not a bar to a philosophical belief being protected by the Regulations if it is a one-off belief and not shared by others. Pacifism and vegetarianism can both be described as one-off beliefs… namely a belief that does not govern the entirety of a person’s life.’
This introduces a different kind of subjectivity into the legal definition of ‘philosophical belief’. In deciding whether a particular belief is worthy of respect in a democratic society, judges will necessarily apply their own morals. Whereas a belief in the supreme nature of Jedi Knights, for example, would quite clearly fail to meet most of the five criteria (according to the EAT in Grainger), the answer will rarely be so straightforward. Judges will be faced with the difficult task of assessing whether a belief is serious enough to warrant protection, and where to draw the line between beliefs and convictions that are idealistic, scientific or political. Judges may not agree on which beliefs are worthy of respect in a democratic society, especially if the category of protected beliefs is extended to lifestyle choices. The possibility that those who hold extremist political views may benefit from protection under discrimination legislation has already caused controversy. A claim that membership of the British National Party amounts to a philosophical belief has previously been rejected by an employment tribunal and it is generally accepted that membership of a political party will not qualify for protection under the 2003 Regulations. However, following Grainger a fervent belief in a political doctrine might qualify. Burton J held that:
‘There is nothing to my mind in the make-up of a philosophical belief… which would disqualify a belief based on a political philosophy.’
A strongly held belief in the political philosophies of socialism, Marxism, communism or free-market capitalism might well qualify for protection. The dividing line between political and philosophical beliefs has become even more blurred as a result of this decision. What will be particularly frustrating for employers in the wake of Grainger will be the uncertainty that now surrounds the definition of a philosophical belief. Whereas it is possible to come up with a definitive list of world religions, the same cannot be said for philosophical beliefs that meet the EAT’s five criteria. Employers are therefore faced with legislation that prohibits discrimination against an unknown and potentially unlimited protected class. If it is necessary to cross-examine a claimant to establish that the relevant philosophical belief is material enough to warrant protection, it may be virtually impossible for an employer to determine which employees are protected (especially in the case of new employees or interview candidates).
McClintock v Department of Constitutional Affairs [2007]
The other problem area for employers is where conflicts arise between an employee’s personal beliefs or principles and the duties that they are required to carry out in the course of employment. In McClintock, a Justice of the Peace – Mr A McClintock – resigned from his position because his employer refused to relieve him of the duty to hear cases in which he might have to place children for adoption, fostering or into care with same-sex partners. McClintock believed that there had been insufficient research into adoption by same-sex partners and that it was not in the best interests of children to be subjected to a ‘social experiment’. McClintock claimed that he had been forced to resign because of the failure to accommodate his beliefs. The EAT held that McClintock did not qualify for protection under the 2003 Regulations because the belief in question was merely an opinion. Elias J stated that:
‘To constitute a belief there must be a religious or philosophical viewpoint in which one actually believes; it is not enough to have an opinion based on some real or perceived logic, or based on information or lack of information available. Mr McClintock had not as a matter of principle rejected the possibility that single-sex parents could ever be in a child’s best interests; he felt that the evidence to support this view was unconvincing but did not discount the possibility that further research might reconcile the conflict which he perceived to exist.’
It may be hard to differentiate between the type of views held by McClintock regarding traditional family values and those held by Nicholson regarding climate change. One could argue that both are based either on logic (real or perceived) or information (or the lack of information). According to the EAT in Grainger, McClintock failed because he was not acting on the basis of a philosophy. However, if a person could establish that they hold a philosophical belief that is based on science (as opposed, for example, to religion) then there seems to be no reason to disqualify it from protection under the 2003 Regulations. Part of the problem with any attempt to define belief with reference to philosophy is that it has no universally accepted definition. It is a term that does not lend itself to legal interpretation.
Ladele v London Borough of Islington [2009]
McClintock can be compared with Ladele, which also related to civil partnerships but was brought by a registrar, an orthodox Christian, who opposed same-sex relationships on religious grounds.Lilian Ladele had worked for the council since 2002 and, when the law changed to permit civil partnerships, she was required to conduct such ceremonies. She informed the council that she objected to carrying out any duties connected with civil partnerships. The council made it clear to Ladele that a refusal to carry out any of these duties conflicted with its equality and diversity policy, and that a continued refusal may lead to disciplinary action. Although attempts were made by the council to find a compromise, Ladele’s continued refusal to perform any civil partnership duties caused tension in her department and other members of staff complained that she was discriminating against the gay community. Disciplinary action was eventually taken against Ladele, who responded by bringing claims of discrimination (direct and indirect) and harassment against the council. The Court of Appeal found that Ladele had not been discriminated against on the grounds of her religion or beliefs. Ladele had not been treated differently from anyone else as all registrars were required to conduct civil partnership ceremonies and another registrar who refused to do so on non-religious grounds would be treated the same way. In relation to indirect discrimination, the Court of Appeal found that the council’s aim of acting in accordance with its own equality and diversity policy, both externally in the services provided to the community and internally amongst staff, was a legitimate aim. Requiring all registrars to perform civil partnerships was a proportionate means of achieving that aim. The Court of Appeal made the point that Ladele’s objection was based on a view of marriage that was not a core part of her religion and that the council’s requirement in no way prevented her from worshipping as she wished. In addition, the Court of Appeal implied that Ladele was herself guilty of discrimination under the Equality Act (Sexual Orientation) Regulations 2007, which deal with discrimination in the provision of goods and services, and in the exercise of public functions. The council had a legal obligation to provide its service without discriminating on grounds of sexual orientation and therefore had no alternative other than to require Ladele to perform all civil partnership duties. The Court of Appeal referred to article 9(2) of the ECHR, noting that it does not provide an unqualified right to practice one’s religion at any time. The right of freedom of religion is expressly subject to such limitations as are prescribed by law and are necessary in a democratic society, or for the protection of the rights and freedoms of others. Accordingly, the Court found that Ladele’s desire to have her religious views respected should not override the council’s concern to abide by its equality and diversity policy, and to adhere to its legal obligation to avoid discrimination.
Conclusion
It is striking how many recent employment cases involve the conflict between religious values on the one hand and gender or sexual orientation rights on the other. The fact that we now have legislation outlawing discrimination on grounds of sexual orientation and religion or belief does not entitle one protected group to discriminate against the other. This would undermine the entire system of equality protection. However, case law demonstrates that it is not easy in practice to tread a non-discriminatory path when, in a diverse multicultural society, accommodating one employee’s preferences may well offend other employees. The decision in Grainger could pave the way for claims by employees who take issue with the ethical choices or policies of their employers, customers or clients. It has also been suggested that pension scheme trustees may be exposed to claims from members who are excluded from participating in their employer’s pension scheme due to the choice of funds made available for investment of pension contributions, if such funds contradict the member’s philosophical beliefs. If a committed environmental activist refuses to travel by plane and this hinders their ability to do their job, could the employer dismiss the activist without fear of a discrimination claim? An animal campaigner who works for a PR agency may object to working for pharmaceutical clients. Could such an employee be disciplined if they could not be accommodated elsewhere in the organisation? What about the unwavering atheist who takes exception to extra days of annual leave being awarded to fellow employees so that they can observe religious holidays? Surely it is only a matter of time before we see test cases of this nature. For discrimination to arise the employee must be subjected to some less favourable treatment on the grounds of their particular religion or belief. If an employee is merely offended by an employer’s moral stance – but does not actually suffer any detrimental action – that would not be enough to give rise to a claim. However, the uncertainty surrounding what could constitute a philosophical belief under the 2003 Regulations will make it increasingly difficult for employers to anticipate and guard against litigation.
By Mark Levine, partner, and Daniel Myers, solicitor, Mishcon de Reya.
E-mail: mark.levine@mishcon.com; daniel.myers@mishcon.com.
Grainger plc & ors v Nicholson [2009] UK EAT 0219/09
Ladele v London Borough of Islington [2009] EWCA Civ 1357
McClintock v Department of Constitutional Affairs [2007] UK EAT 0223/07
