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Religion or belief: is the law working?

January 18, 2017

robitlwThis report explores whether Great Britain’s equality and human rights legal framework sufficiently protects individuals with a religion or belief and the distinctiveness of religion or belief organisations, while balancing the rights of others protected under the Equality Act 2010.The assessment reflects the EHRC’s statutory duty to monitor the effectiveness of equality and human rights legislation and make recommendations to the Government about any changes that might be necessary.

Looking at how well the law in Great Britain protects individuals with a religion or belief, or lack of religion or belief, it focuses on four areas:

  • definitions of religion or belief
  • exceptions in the Equality Act
  • the law protecting employees
  • the law protecting service users and service providers

The national equality body has ruled out amending the law, as some have demanded, to require employers to accommodate the religious beliefs of employees even if that results in discrimination against others. Such a reform would, for example, protect a Christian registrar not presently allowed to refuse to perform civil partnership ceremonies.

Andrew Copson, chief executive of the British Humanist Association, said: ‘It is very welcome that the commission has confronted critics of Britain’s equality laws head on. For too long now, we have seen an ever-more vocal minority of Christian lobbyists demanding increased rights to discriminate against others.

‘The EHRC has rightly rejected their arguments, and instead correctly identified that, if anything, the law needs to be amended to limit such discrimination, especially when it comes to religious schools.

‘We will be taking these matters up with the government to ensure that all people’s freedom of religion and belief is upheld.’

And even though racial harassment protection applies to Sikhs and Jewish people but not to those of other religions, the organisation has concluded that harassment protection should not be extended to cover religion or belief outside the workplace. ’Subjectivity in what is considered offensive could lead to a chilling effect on freedom of expression,’ the report says.

Quotations:

The Equality Act does not permit an individual or organisation to discriminate when providing services to the public by treating someone worse because of a protected characteristic. However, it provides an exception allowing a non-commercial religion or belief organisation to restrict services on the basis of sexual orientation because doing so is necessary to comply with its doctrine, or to avoid conflict with the strongly held convictions of a significant number of its members. Some have argued that this exception is too narrow and that any service provider where the owner has a religion or belief should be able to rely on the exception and restrict services on the basis of sexual orientation. The Commission’s research also suggests that some service providers believe they should be able to refuse a service to particular groups where providing the service  would not accord with their religious views.

In our view, the law does not and should not permit discriminatory service provision by public or commercial service providers. A service provider is permitted to provide a service that caters for specific religious needs but it may not treat customers on a discriminatory basis. Where a service is provided to the public, it must be provided to all on equal terms.

in Muhammed v The Leprosy Mission International, the Leprosy Mission (a Christian charity) was allowed to refuse applications for a finance administrator role from non-Christians, because Christianity permeated the organisation, with prayers starting each day. The tribunal found the requirement for a finance administrator to be a Christian was a genuine occupational requirement due to the context in which the job was carried out; that is, the belief in the power of Christian prayer to achieve the respondent’s goals was at the core of its work and activities.

In another case, the tribunal found that a charity which had a policy of recruiting only Christians to posts of particular seniority had unlawfully failed to consider each appointment separately to assess whether it could be reasonably subject to a religious requirement: a ‘fundamentally flawed’approach.

the exceptions for voluntary controlled and voluntary aided schools are too broad and do not comply with the requirement in Article 4 (2) of the EU Employment Equality Directive that exceptions to the prohibition on discrimination be legitimate and proportionate.

We consider that it is legitimate to exercise an occupational exception for teachers providing religious education in order to preserve the religious ethos of a school of religious character. Reserving one fifth of posts on the basis of fitness to teach religious education in voluntary controlled schools is arbitrary, may not reflect the needs of the school and is not a proportionate exercise of occupational requirements. The faith requirements applied to all teachers in voluntary aided schools, regardless of whether they are teaching religion, also seem to go beyond what is lawful in the EU Employment Equality Directive.

they would seem to permit a Catholic school to dismiss a gay or lesbian teacher,

a divorced teacher or a married teacher conducting a relationship outside of marriage. This also appears to be too broad to comply with the requirement in Article 4 (2) of the EU Employment Equality Directive that ‘difference of treatment’ ‘should not justify discrimination on another ground’.

Each situation is different, and the outcomes in individual cases are sensitive to the particular facts in each instance

Opting out of work duties may be permissible where there is no actual or potential detrimental impact to other staff or to service users. In some instances this will not only be good practice, but essential to ensure that the employer is not indirectly discriminating against the person requesting the arrangement. One example of this might be where an employee requests that they should be permitted not to handle alcohol or meat products as part of their work duties and this is not a key element of these duties. Thus, where an employee wishes to opt out of their working arrangements, and  this will not give rise to perceived or actual discrimination against others, the employer should consider the request seriously and should allow it unless there are objective reasons not to do so, such as the impact on other staff or service users

Denise Haye, an evangelical Christian who felt it was part of her faith to proselytise about Christian teachings, including about sexual relationships and marriage, sent a homophobic and offensive email to the then head of the Lesbian and Gay Christian Movement using her work account. The tribunal found that it was not her religious views, but the manner in which she had expressed them, that led to her dismissal . It found that her employer, the London Borough of Lewisham, had a legitimate aim in wanting to exercise control over the views transmitted by employees in the course of employment. The policy was a proportionate means of achieving that aim, as it did not interfere with the claimant’s right to proselytise outside work in her own time.

the tribunal found in favour of Sarah Mbuyi, an evangelical Christian, who was dismissed by her employer, Newpark Childcare, for harassment following a discussion with a lesbian colleague in which Mbuyi said that homosexuality was a sin. The tribunal said that Mbuyi had not harassed her colleague as there was no evidence of unwanted conduct, because Mbuyi had given her views after being asked for them. The tribunal found that Mbuyi’s belief that homosexuality is a sin was protected by the Equality Act and that Newpark Childcare had made stereotypical assumptions about Mbuyi and her beliefs and could not provide a non-discriminatory explanation for its treatment of her.

The report is online here

See also guidance for employers

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