Plans
to outlaw religious discrimination in the workplace could confuse employers,
law firm Beachcroft Wansbroughs has warned.
Rachel
Dineley, a partner at Beachcroft Wansbroughs believes the draft
anti-discrimination legislation published this week could also require
employment tribunals to make value judgements on what beliefs should be
protected by law.
The
firm believes that the draft is fundamentally flawed because it does not define
what a ‘religious or philosophical belief’ should be – leaving the issue open
to interpretation.
With
a philosophy explained only as ‘similar to a religious belief’, any employment
tribunal assessing a religious discrimination case would need to decide whether
the personal convictions concerned fall within the legislation.
Dineley
said: "This central issue needs clarification. In its draft form, the
legislation would require the chair of any employment tribunal to make
essentially philosophical decisions before allegations of discrimination could
be considered.
"Apart
from the added complications this will cause, tribunals themselves could be
open to challenge on the decisions they make, without further guidance, on what
grounds should they make their assessment.”
In
drafting the Framework Directive (from which this new legislation is drawn),
the European Commission made clear it was not intended to protect political
groups.
However,
the term ‘philosophical’ might well be applied to strongly held political convictions. The distinction between religious and
political belief could prove very difficult to draw."
Dineley
believes the proposed law could lead to conflict with existing race
discrimination legislation. "Consider an employee who posts evangelical literature
on a company noticeboard which offends his work colleagues from a different
ethnic background," he said.
"Under
current law regarding race discrimination, an employer might be advised to
remove such material to avoid a potential claim from other sections of the
workforce and to take disciplinary action against the individual.
"However,
under this draft legislation, it’s possible that the employee could seek
redress in respect of such disciplinary action by arguing that he had been
subjected to an unlawful detriment.
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"It
would be up to a tribunal to try and resolve this conflict, but the current
draft legislation offers little guidance or support".
