Religion and politics have long been subjects best avoided at dinner parties, and now people must proceed with renewed caution when bringing up these thorny topics in the workplace.
In April the legislation that protects people in the workplace from discrimination on the grounds of their beliefs – the Employment Equality (Religion or Belief) Regulations 2003 – was amended in a small, but potentially significant way.
The old legislation defined “belief” as any “religious belief or similar philosophical belief”. This definition required a philosophical belief to be similar to a religious belief to give rise to protection.
However, on 30 April 2007 the word “similar” was removed from the definition (though not from the government websites that advise employers and employees of their rights and responsibilities – as at 21 May the word “similar” still featured on the DTI and Directgov sites).
This update occurred to coincide with the new definition found in Part 2 of the Equality Act 2006, which puts an onus on public sector bodies to eliminate discrimination on the grounds of religious belief when delivering services to the community.
The change, say lawyers, considerably extends the scope of what might be regarded as a “philosophical belief” so that any genuine philosophical belief is now covered by the regulations.
“Employers need to tread carefully as the potential to discriminate has been extended,” advises Audrey Williams, head of discrimination and diversity at law firm Eversheds.
“The regulations mean that treating an employee differently because of their philosophical beliefs could result in a discrimination claim,” she says.
The change also introduces a protection for employees from discrimination based on their association with someone else, such as a spouse or partner. So if, for example, a worker is married to a Muslim or an atheist, whether or not they hold the same belief it is still unlawful for an employer to discriminate based on that association.
Case law will clarify
What beliefs, lifestyles and strongly held convictions are now covered by the legislation and the term “philosophical belief” remains vague and will probably only be clarified by case law.
Currently lawyers are generally agreed that organised groups such as followers of Scientology or humanists are now protected. But what about more loosely structured groups like animal rights activists, pacifists, vegans and vegetarians? Until we have sufficient case law it is difficult to know – leaving the door open for some potentially outlandish claims.
“A claim being made because there are not enough vegetarian options in the office canteen is unlikely to succeed,” says Stuart Chamberlain, employment law expert at legal information provider Consult GEE. “Employment tribunals will hopefully apply common sense to this to avoid a flood of claims against employers.”
At law firm Salans, partner Andrea Nicholls refers to a discussion on this amendment in the House of Lords which may help to clarify the point.
At the time Baroness Turner of Camden suggested that the term “philosophical belief” should be interpreted in line with case law established by the European Court of Human Rights (ECHR) and that the beliefs intended to be protected are those that amount to “a world view or life stance”.
Belief satisfies the test
But this definition itself could be confusing, argues Nicholls. You could, for example, take two people who say they are pacifists – one who just doesn’t like war and the other who may have organised demonstrations, lobbied government and shown a level of commitment that equates to a “life stance”. However, Nicholls says it would be unsatisfactory from a legal standpoint if “this results in the same belief in one instance satisfying the test and in another not doing so”. According to Nicholls, it is more likely that the courts will devise an objective assessment to ascertain whether a belief satisfies the test.
How far political beliefs are covered by the new regulations is also unclear, with conflicting advice being offered. It is generally agreed that discrimination against general political beliefs, such as communism or Marxism, is now covered by the regulations. Things are less clear when it comes to knowing whether membership of a political party now qualifies as a philosophical belief.
Fascist beliefs
A case in point is the British National Party, where past claims by members that their fascist beliefs were similar to religious beliefs have been decided in favour of the employer or potential employer. But some lawyers are arguing that under the amended law a strong argument can now be made to the contrary.
The guidance notes issued by the Department of Communities and Local Government to help with the implementation of this year’s Equality Act which incorporates the change clearly state that support for a political party does not constitute a philosophical belief.
According to Hanne Stinson, chief executive of the British Humanist Association and an expert in discrimination issues, since the Employment Equality (Religion or Belief) Regulations have been amended to match the Equality Act “it seems reasonable to assume that the same guidance would apply”.
There are, however, areas of the new legislation that are clear, including the fact that workplace protection is now extended to atheists and non-believers.
According to Williams this means employers cannot discriminate against any worker on the grounds of their beliefs, regardless of whether they practise a religion or not, and importantly, regardless of whether they believe in any God. For instance, this will protect atheists who might be made to feel uncomfortable by religious colleagues who pressure them to join their faith. Under the amendment this constitutes harassment, says Williams.
“Like all the anti-discrimination legislation that has appeared in the past decade, this amendment is aimed at creating a culture of mutual respect in the workplace where everyone appreciates one another’s boundaries,” she says.
And that’s something everyone should believe in.
What is the response from employers?
While the new amendments to the employment regulations are vague, head of diversity at retail company the Co-op Group, Amanda Jones, is confident the company’s diversity training programme will ensure employees are prepared for the changes.
“Fundamentally our training programme is all about creating a culture of respect in the workplace,” she says.
“While the programme is updated every year to incorporate changes, we feel the environment we are creating in our workplace will mean that all beliefs are respected.”
At housing association LHA, HR and learning adviser, Kate Davies, says her team will go through the same process they did when the original regulations came into force in 2003.
“We will look to see whether we need to provide special facilities for groups now covered by the new regulations, such as a place where they can carry out their worship or meditations,” she says.
Davies is also confident that the organisation’s current recruitment monitoring processes will satisfy the new amendment.
“On the monitoring form we ask people to state their religion and provide a list of tick boxes with the standard religions. There is also a box with the option for candidates to write their religion if it is not included and we are happy with that solution for the time being,” she says.
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